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Columbia  &nifcer*itjj  lectures 





80-82  "WEST  27ra  STEKBT 








All  rights  reserved 

COPYRIGHT,  1916, 


Set  up  and  electrotyped.    Published  May,  1916. 

J.  8.  Cashing  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


THE  six  chapters  included  in  this  book  were  originally 
delivered  by  Mr.  Taft  at  Columbia  University,  during  the 
winter  session  of  1915-16,  as  the  Blumenthal  Lectures, 
under  the  general  title :  "  The  Presidency,  Its  Powers, 
Duties,  Responsibilities  and  Limitations."  With  this 
title,  in  accordance  with  the  usual  custom,  they  were  also 
presently  announced  by  the  Columbia  University  Press 
as  a  forthcoming  publication. 

Since  a  similar  title  had  already  been  given  to  a  course 
of  three  lectures  delivered  by  Mr.  Taft  at  the  University 
of  Virginia,  in  the  academic  year  1914-15,  the  publication 
of  which  had  been  undertaken  by  Charles  Scribner's  Sons, 
the  title  of  this  volume  has  been  changed,  at  the  author's 
suggestion,  to  its  present  form. 














THE  LIMITATIONS  OF  THE  PRESIDENT'S  POWERS      .        .        .    125 

INDEX.  159 




THE  framers  of  our  Constitution  were  much  affected 
by  Montesquieu's  appreciation  of  the  English  Con- 
stitution and  his  insistence  upon  a  division  of  the 
government  into  Legislative,  Executive  and  Judicial 
branches  and  a  separation  of  one  from  the  other, 
as  the  best  security  for  civil  liberty.  They,  thus, 
made  this  division  and  separation  more  clearly  marked 
and  rigid  than  in  the  British  Constitution.  In  a  way 
that  I  shall  attempt  to  describe  later,  there  was  es- 
tablished the  power  of  the  Judicial  branch,  by  its 
decisions  in  litigated  cases,  to  construe  the  limitations 
on  the  Executive  and  Legislative  powers  contained 
in  the  Constitution  and  thereby  through  the  moral 
influence  and  force  of  its  judgments  to  affect  the 
future  action  of  the  Executive  and  the  Congress,  and 
restrain  them  within  the  limits  of  the  fundamental 
law  as  declared  by  it.  But  these  judgments  of  the 
Supreme  Court  can  only  be  rendered  in  actual  and 
litigated  cases,  in  which  one  individual  has  sued 
another  and  in  which  generally  some  constitutional 
right  of  an  individual  is  infringed  by  Legislative  or 
Executive  action.  There  is  in  the  scope  of  the  juris- 
diction of  both  the  Executive  and  Congress  a  wide 
field  of  action  in  which  individual  rights  are  not  af- 
fected in  such  a  way  that  they  can  be  asserted  and 



vindicated  in  a  court.  In  this  field,  the  construction 
of  the  power  of  each  branch  and  its  limitations  must 
be  left  to  itself  and  the  political  determination  of  the 
people  who  are  the  ultimate  sovereign  asserting  them- 
selves at  the  polls.  Precedents  from  previous  ad- 
ministrations and  from  previous  Congresses  create 
an  historical  construction  of  the  extent  and  limitations 
of  their  respective  powers,  aided  by  the  discussions 
arising  in  a  conflict  of  jurisdictions  between  them. 
The  field  of  action  by  the  Executive  is  perhaps  less 
subject  to  judicial  interpretation  than  that  of  Con- 
gress. Most  legislation  of  doubtful  validity  in  one 
way  or  another  ultimately  comes  before  the  Court. 
And  so  the  limitations  of  Congress  may  be  much 
more  fully  studied  in  the  Supreme  Court  Reports 
than  those  of  Executive  action.  This  makes  the 
definition  of  Executive  power  somewhat  more  diffi- 
cult, and  somewhat  less  within  the  usually  trodden 
path  of  students  of  constitutional  law,  than  that  of 
Congress.  By  actual  experience  in  the  exercise  of 
Executive  power,  one  must  acquire  some  familiarity 
with  precedents  not  set  forth  in  treatises  and  not 
elaborately  and  carefully  discussed  in  judicial  deci- 
sions. In  the  necessary  paucity  of  living  ex-Presi- 
dents, therefore,  my  empirical  knowledge  of  the  extent 
and  limits  of  our  national  Executive  power  makes 
me  venture  to  ask  your  attention  to  the  subject  of 
these  chapters. 

The  question  of  the  Presidency,  its  duties,  its  re- 
sponsibilities and  its  limitations,  ought  perhaps  to 
be  settled  not  in  the  heat  of  the  issues  that  constantly 
arise  for  the  decision  of  the  incumbent,  but  rather  in 


the  careful  study  from  an  unbiased  standpoint  of  the 
historian  and  the  jurist.  Still  no  such  determination 
will  be  a  fair  one  that  does  not  give  some  weight  to 
the  practical  considerations  that  crowd  upon  one 
charged  with  executive  responsibility.  I  may  add, 
on  the  other  hand,  that  retirement  from  office  to  a 
place  of  study  and  contemplation,  rather  than  of 
action,  modifies  somewhat  the  views  formed,  dum  fervet 
opus.  This,  I  think,  is  significant  of  the  value  of  hav- 
ing, from  tune  to  time,  the  constitutional  limitations 
upon  the  Executive  power  interpreted  by  another 
branch  of  the  government  than  that  to  whose  action 
they  apply. 

The  inefficient  performance  of  their  executive  func- 
tions by  the  Continental  Congress  and  the  ad  interim 
committee  of  that  Congress,  no  one  can  doubt  who 
will  read  the  correspondence  of  Washington  during 
the  Revolution,  or  observe  the  stagnant  chaos  there 
was  after  independence  was  won.  The  example  of 
the  one-man  power  under  George  III,  which  he  main- 
tained by  his  corrupt  control  of  Parliament,  made 
the  Convention  doubtful  as  to  the  methods  by  which, 
and  the  persons  through  whom,  the  Executive  power 
should  be  exercised.  Roger  Sherman,  representing 
a  minority,  thought  that  the  Executive  should  be  the 
mere  agent  of  the  Legislature  to  carry  out  their  will, 
and  others  thought  that  the  Executive  should  not 
only  thus  be  controlled,  but  in  order  to  protect  against 
abuse  of  powers,  it  should  be  vested  in  a  number  of 
persons.  Randolph  of  Virginia  is  understood  to  have 
supported  this  view.  Hamilton,  at  the  other  extreme, 
thought  that  the  Executive  should  be  single,  should 


be  elected  for  life,  and  should  be  given  ample  powers 
independent  of  the  Legislative  branch  and  absolute 
power  to  veto  its  enactments.  The  happy  result 
which  was  reached  between  the  two  extremes  is  only 
one  of  the  many  instances  of  the  triumph  of  clear- 
headed common  sense,  wise  patriotism  and  the  personal 
sacrifice  of  cherished  notions,  which  we  find  in  the 
compromises  embodied  in  our  wonderful  Constitution, 

The  result  in  respect  of  the  Executive,  as  you  know, 
was  that  the  President  was  to  be  elected  for  a  term  of 
four  years,  by  an  electoral  college  elected  by  the  people 
of  the  states,  or  in  such  manner  as  the  legislature  of 
each  state  might  provide,  and  was  given  wide  powers, 
not  rigidly  limited,  including  the  power  of  qualified 
veto,  under  which  he  could  prevent  any  bill  from 
becoming  law  unless  it  could  subsequently  be  passed 
over  his  veto  by  a  two-thirds  vote  in  each  House  of 

I  am  strongly  inclined  to  the  view  that  it  would 
have  been  a  wiser  provision,  as  it  was  at  one  tune 
voted  in  the  Convention,  to  make  the  term  of  the 
President  six  or  seven  years,  and  render  him  ineligible 
thereafter.  Such  a  change  would  give  to  the  Executive 
greater  courage  and  independence  in  the  discharge  of 
his  duties.  The  absorbing  and  diverting  interest  in 
the  reelection  of  the  incumbent,  taken  by  those  Federal 
civil  servants  who  regard  their  own  tenure  as  dependent 
upon  his,  would  disappear  and  the  efficiency  of  ad- 
ministration in  the  last  eighteen  months  of  a  term 
would  be  maintained. 

I  think,  too,  it  would  have  been  better  to  bring  the 
Executive  a  little  closer  in  touch  with  Congress  in 


the  initiation  of  legislation  and  its  discussion,  notably 
in  the  matter  of  budgets  and  the  economical  adminis- 
tration of  governmental  affairs.  The  great  problem 
that  is  forcing  itself  upon  the  attention  of  the  American 
people  is  the  method  of  restraining  the  extravagance 
of  legislatures  and  of  Congresses.  The  people  them- 
selves are  largely  to  blame  for  this,  not  the  people 
as  the  whole,  but  the  people  divided  into  districts, 
because  the  constituencies  of  members  of  Congress 
and  of  Senators  stimulate  their  representatives  in  a 
competitive  effort  to  get  as  much  money  out  of  the 
public  treasury  for  their  respective  districts  as  possible, 
and  are  prone  to  decline  reelecting  representatives  who 
fail  in  this  contest.  I  have  not  time  to  dwell  on  the 
enormous  burden  that  this  selfishness  of  the  people 
of  each  district  and  of  their  representative  imposes 
upon  the  government  and  upon  all  the  people.  The 
waste  of  money  in  river  and  harbor  bills,  in  public 
building  bills,  in  the  establishment  of  army  posts  and 
of  navy  yards  at  places  selected,  not  because  they 
are  most  useful  to  the  army  and  navy  in  the  economic 
administration  of  military  and  naval  defenses,  but 
because  they  are  in  favored  districts,  have  had  much 
to  do  with  the  increase  by  leaps  and  bounds  of  our 
actual  governmental  expenditure.  Every  other  gov- 
ernment but  ours  has  what  is  called  a  budget  system. 
It  was  best  developed  perhaps  in  the  English  system 
of  government,  and  its  historical  growth  is  interesting 
to  trace  and  is  useful  in  order  to  point  the  way  to  the 
curbing  of  legislative  extravagance.  I  do  not  mean 
to  say  that  the  heads  of  bureaus  and  even  the  heads 
of  departments  in  the  Executive  branch  may  not  be 


prone  to  extravagance,  but  the  result  of  my  experience, 
which  I  am  sure  is  borne  out  by  the  conclusion  of 
others,  is  that  the  Chief  Executive,  because  he  is  the 
one  whose  method  of  choice  and  whose  range  of 
duties  have  direct  relation  to  the  people  as  a  whole 
and  the  government  as  a  whole,  is  most  likely  to  feel 
the  necessity  for  economy  in  total  expenditures.  It 
is  true  of  the  governor  of  a  state,  as  it  is  of  the  Presi- 
dent of  the  United  States.  Those  who  are  least 
moved  by  anxiety  as  to  the  totals  are  the  members  of 
the  Legislative  branch  who  are  struggling  to  get  as 
much  money  as  they  can  out  of  the  general  treasury 
for  their  respective  local  constituencies. 

In  English  history,  the  King  and  his  Ministers  ran 
the  government,  and  the  early  struggle  of  Parliament 
was  to  restrain  the  King.  The  Commons  of  England 
by  hard  effort  finally  confirmed  to  themselves  the  power 
to  refuse  to  the  King  money  which  he  asked  to  carry 
on  the  government  of  the  Kingdom.  He  came  before 
them  and  said,  "I  need  and  request  this  much  money 
to  discharge  the  duties  of  the  Crown,"  and  the  Com- 
mons scrutinized  his  demands,  and  frequently  in  the 
giving  exacted  from  him  conditions  and  limitations. 
More  than  two  centuries  ago,  in  the  government  that 
thus  grew  up,  there  was  adopted  a  rule  in  Parliament 
that  no  member  could  be  heard  to  move  for  an  increase 
in  the  supplies  and  none  would  be  granted  unless  asked 
by  the  Crown.  In  other  words,  the  Crown  was  ask- 
ing the  Commons  for  money,  and  the  function  of  the 
Commons  was  to  examine  the  merit  of  the  request 
and  to  cut  down  from  the  supplies  asked,  without 
power  to  increase  them.  The  due  course  at  the  present 


day  is  for  the  Crown  through  its  Ministers  and  Parlia- 
ment to  submit  for  discussion  the  supplies  that  each 
department  of  the  government  needs,  to  have  such 
supplies  voted  by  Parliament,  without  any  increase. 
After  the  supplies  have  been  voted,  it  becomes  the 
duty  of  the  Ministers  of  the  Crown  to  propose  to 
Parliament  through  the  Chancellor  of  the  Exchequer  the 
budget,  that  is,  a  statement  of  the  total  proposed  ex- 
penditure and  of  the  means  by  which  the  revenue  is  to 
be  raised  with  which  to  meet  the  cost.  In  this  way  the 
extravagance  on  the  part  of  Parliament  is  avoided,  and 
the  government  takes  over  the  responsibility  for  econ- 
omy and  efficiency  in  government.  Of  course  Parlia- 
ment has  the  general  legislative  power,  and  it  may  pass 
laws  imposing  upon  the  Crown  new  duties  of  adminis- 
tration requiring  the  appropriation  of  additional  funds 
to  discharge  these  new  duties.  The  Crown  must  sub- 
mit an  estimate  for  this  increase.  I  have  been  perhaps 
more  detailed  in  this  statement  than  I  ought  to  have 
been  in  this  connection,  for  the  reason  that  your 
late  Constitutional  Convention  has  grappled  with  the 
question  and  attempted  to  solve  it  in  the  proposed 
amendments  to  your  Constitution  upon  this  head. 
It  is  one  of  the  most  important  steps  of  progress  that 
has  been  taken  in  constitutional  law  in  this  country. 
In  all  the  wild  fads  and  nostrums  that  we  find  set 
forth  in  recent  constitutional  amendments  adopted 
in  various  states,  this  stands  out  as  a  shining  light  of 
hope  and  a  vindication  of  optimism.  If  New  York 
succeeds  in  adopting  this  system,  by  which  the  governor 
submits  estimates  and  a  budget  of  expenditures  and 
proposed  revenues,  and  the  legislature  of  New  York 


is  forbidden  to  increase  the  estimates  by  him  sub- 
mitted, the  alarming  expenditure  and  extravagance 
of  government  expenses  will  be  halted,  and  this  with- 
out in  any  degree  reducing  the  proper  legislative 
control  of  the  general  scope  and  extent  of  governmental 
action  and  expenditure.  Upon  the  governor  and 
those  associated  with  him  will  be  placed  the  responsi- 
bility for  running  that  government  which  the  legis- 
lature has  provided  by  law,  as  efficiently  and  economi- 
cally as  it  can  be  done,  and  the  inconsiderate  selfishness 
of  local  constituencies  will  be  defeated.  Success  of 
this  system  in  New  York  will,  I  doubt  not,  lead  to  a 
similar  reform  in  the  government  at  Washington. 
Now  not  only  is  Congress  unlimited  in  its  extravagance, 
due  to  the  selfishness  of  the  different  congressional 
constituencies,  but  Congress  as  a  whole  and  each 
House  as  a  unit  have  by  committee  government  de- 
liberately parted  with  any  actual  efficient  control  of 
the  total  annual  expenditures  from  the  public  treasury. 
Nor  has  Congress  earnestly  cooperated  in  the  past 
with  the  Executive  in  efforts  to  secure  a  more  economical 
organization  of  the  government  and  the  elimination  of 
duplication  of  functions  and  greater  saving  and  effi- 
ciency in  the  departments.  I  think,  therefore,  that 
our  Federal  Constitution  might  be  improved  in  im- 
posing the  duty  of  framing  a  budget  on  the  Executive 
and  limiting  the  power  of  Congress  in  the  voting  of 
appropriations,  so  that  it  may  give  all  that  the  Executive 
asks  to  run  the  government  as  organized  by  Congress 
through  general  laws,  and  may  not  have  the  specific 
power  to  increase  the  appropriations  which  the  Execu- 
tive says  on  his  oath  and  his  responsibility  are  enough 


to  carry  on    the   government   duly   established    by 

As  every  President  has  to  do,  I  made  many  addresses, 
and  the  gentleman  who  introduced  me,  by  way  of 
exalting  the  occasion  rather  than  the  guest,  not 
infrequently  said  that  he  was  about  to  introduce  one 
who  exercised  greater  governmental  power  than  any 
monarch  in  Europe.  I  need  hardly  point  out  the 
inaccuracies  of  this  remark,  by  comparing  the  powers 
of  the  President  of  the  United  States  with  those  of 
the  rulers  of  countries  in  which  there  is  not  real  popu- 
lar legislative  control.  The  powers  of  the  German 
Emperor,  of  the  Emperor  of  Austria,  and  the  Emperor 
of  Russia  are  far  wider  than  those  of  the  President  of 
the  United  States,  although  there  are  in  each  of  those 
countries  legislative  bodies  with  members  more  or 
less  representative  of  the  people,  with  some  power  of 
governmental  control.  On  the  other  hand,  in  really 
parliamentary  governments,  the  head  of  the  state  is 
less  powerful  than  our  President.  In  England,  as  it 
is,  the  King  reigns,  but  does  not  govern,  and  the  same 
thing  is  true  in  the  Dominion  of  Canada,  of  the  Gov- 
ernor-General. In  France,  the  President  presides,  but 
does  not  govern.  In  such  parliamentary  governments, 
however,  there  is  a  real  ruler  who  exercises  in  some 
important  respects  a  greater  power  than  the  President 
of  the  United  States.  He  is  the  leader  of  the  majority 
in  the  popular  house  and  remains  in  office  only  as 
long  as  he  has  that  majority  behind  him.  He  is  the 
premier,  and  exercises  both  executive  and  legislative 
functions.  The  executive  head  of  the  state,  whether 
King  or  President  or  Governor-General,  follows  his 


recommendation  in  executive  work,  and  he  with  his 
colleagues  in  the  Cabinet,  as  responsible  Ministers 
so-called,  controls  the  legislation. 

It  would  be  idle  to  discuss  which  is  the  better  form 
of  government.  It  may  be  generally  said  that  those 
who  have  a  parliamentary  or  responsible  government, 
as  it  is  called,  like  that  form,  and  that  we  like  our  form. 
Ours  is  more  rigid,  in  that  it  divides  the  Executive 
from  the  Legislative,  but  is  like  parliamentary  govern- 
ment in  that  in  both  the  Judicial  branch  is  independent 
of  the  other  two.  It  is  often  said  that  parliamentary 
government  is  more  responsive  to  the  will  of  the  people 
than  ours  in  which  we  have  the  rigid  system  of  an 
election  of  the  President  every  four  years  and  of  a 
Congress  every  two  years;  whereas  whenever  public" 
opinion  changes  in  a  parliamentary  or  responsible 
form  of  government,  the  government  changes  accord- 
ingly. This  is  hardly  accurate.  The  parliamentary 
government  is  responsive  to  the  views  of  the  majority 
of  the  members  of  the  more  popular  house,  and  if 
those  views  do  not  change,  and  that  majority  con- 
tinues to  support  the  existing  Ministers  of  the  Crown 
who  have  been  selected  from  its  members,  the  govern- 
ment will  last  as  long  as  the  law  permits  it  to  last. 
Until  recently  the  period  was  seven  years  in  England 
and  is  now  five  years.  This  majority  in  the  popular 
house,  the  House  of  Commons,  is  always  elected  in  a 
bitter  political  controversy  and  the  members  of  the 
majority  are  always  elected  as  political  partisans. 
They  and  not  the  people  must  change  their  views  if 
the  political  character  of  the  government  is  to  change. 

It  is  true,  that  when  a  government  in  England  gets 


its  power  from  a  majority  in  the  House  of  Commons, 
made  up  not  of  all  the  members  of  one  party,  but  of 
the  members  of  one  party,  united  with  those  of  smaller 
groups  of  members  representing  a  class  or  special  in- 
terest, then  changes  in  the  parliamentary  management 
are  likely  to  be  more  frequent.  In  the  present  Parlia- 
ment, there  is  the  Liberal  Party,  the  Irish  Party  and 
the  Labor  Party.  The  two  latter  are  groups,  small  in 
number  as  compared  with  the  Liberal  Party,  but 
needed  in  making  up  the  Ministers'  majority.  This 
gives  the  groups  holding  the  balance  of  power  an 
opportunity  to  force  measures  in  their  special  interest, 
that  as  separate  issues  might  not  be  approved  by  a 
majority  of  Parliament  or  of  the  voters  of  the  King- 
dom, a  condition  which  is  not  conducive  to  the  best 
considered  legislation. 

It  is  true  that  a  parliamentary  government  offers  an 
opportunity  for  greater  effectiveness  in  that  the  same 
mind  or  minds  control  the  executive  and  the  legislative 
action,  and  the  one  can  be  closely  suited  to  the  other ; 
whereas  our  President  has  no  initiative  in  respect  to 
legislation  given  him  by  law  except  that  of  mere  recom- 
mendation, and  no  method  of  entering  into  the  argument 
and  discussion  of  the  proposed  legislation  while  pending 
in  Congress,  except  that  of  a  formal  message  or  address. 
To  one  charged  with  the  responsibilities  of  the  Presi- 
dent, especially  where  he  has  party  pledges  to  perform, 
this  seems  a  defect,  but  whatever  I  thought  while 
in  office,  I  am  inclined  now  to  think  that  the  defect 
is  more  theoretical  than  actual.  It  usually  happens 
that  the  party  which  is  successful  in  electing  a  Presi- 
dent is  also  successful  in  electing  a  Congress  to  sustain 


him.  The  natural  party  cohesion  and  loyalty,  and  a 
certain  power  and  prestige  which  the  President  has 
when  he  enters  office,  make  his  first  Congress  one  in 
which  he  can  exercise  much  influence  in  the  framing 
and  passage  of  legislation  to  fulfil  party  promises. 
The  history  of  the  present  administration  and  that 
of  many  administrations  bear  me  out  in  this.  But  it 
is  said  that  not  infrequently  the  second  Congress  of  an 
administration  contains  a  majority  politically  adverse 
to  the  President  in  either  one  or  both  of  its  Houses  which 
makes  affirmative  legislation  impossible  and  limits  con- 
gressional action  to  appropriation  bills  and  non-political 
measures,  if  there  are  any  such.  The  President  in  such  a 
case  naturally  chafes  under  his  inability  to  put  through 
important  bills,  which  he  deems  of  the  highest  value. 
On  the  whole,  however,  I  do  not  think  the  country 
suffers  from  this  in  an  age  and  generation  when  the 
bane  of  political  methods,  and  the  danger  to  the  best 
interests  of  the  country,  is  in  the  overwhelming  mass 
of  ill-digested  legislation.  We  live  in  a  stage  of  politics, 
where  legislators  seem  to  regard  the  passage  of  laws 
/as  much  more  important  than  the  results  of  their 
'enforcement.  The  value  of  the  legislation  seems  not 
to  be  in  the  good  of  its  operation,  but  in  its  vote- 
getting  quality,  and  its  use  as  molasses  for  the  catch- 
ing of  political  flies.  Therefore,  a  system  in  which 
we  may  have  an  enforced  rest  from  legislation  for 
two  years  is  not  bad.  It  affords  an  opportunity  for 
proper  digestion  of  recent  legislation  and  for  the 
detection  of  its  defects. 

Real  progress  in  government  must  be  by  slow  stages. 
Radical   and   revolutionary   changes,   arbitrarily   put 


into  operation,  are  not  likely  to  be  permanent  or  to 
accomplish  the  good  which  is  prophesied  of  them. 
My  observation  of  new  reform  legislation  of  a  merito- 
rious character  is  that  Congress  and  its  members  must 
be  educated  up  to  its  value  by  those  who  have  studied 
it  and  become  convinced  of  its  wisdom.  It  will  be 
found  that  much  of  the  good  legislation  that  has  gone 
on  to  the  statute  book  has  been  pending  before  suc- 
cessive sessions  of  Congress  and  successive  Congresses 
until  Congress  and  the  public  have  become  familiar 
with  the  reasons  for  its  adoption,  until  discussions 
lasting  over  from  one  Congress  to  another  have  sub- 
jected the  proposals  to  useful  scrutiny  and  amend- 
ment, and  until  it  thus  acquires  a  form  that  Congress 
is  willing  to  adopt.  Sessions  therefore  at  which  legis- 
lation is  not  finally  adopted,  in  which  there  is  much 
discussion  of  proposed  legislation,  may  often  be  most 
useful  to  the  public,  both  in  defeating  legislation  which 
ought  not  to  be  enacted  and  in  framing  for  future 
adoption  legislation  which  will  be  useful.  The  pro- 
vision in  some  legislatures,  Massachusetts  especially, 
that  every  bill  which  is  introduced  must  be  considered 
or  defeated  or  passed  is  not  in  my  judgment  a  useful 
provision.  It  is  apt  to  give  unripe  laws  by  forcing 
undigested  and  premature  expression  of  opinion  in 
the  votes  of  legislators.  Bars  in  music  are  used  in 
the  maintenance  of  harmony,  and  contribute  to  the 
comfort  of  the  auditor.  The  world  is  not  going  to  be 
saved  by  legislation,  and  is  really  benefited  by  an 
occasional  two  years  of  respite  from  the  panacea  and 
magic  that  many  modern  schools  of  politicians  seem  to 
think  are  to  be  found  in  the  words,  "Be  it  enacted." 


The  President  has  both  legislative  and  executive 
power.  Among  his  executive  functions  we  shall  find 
those  which  are  purely  executive  and  those  which  are 
quasi-legislative  and  are  quasi-judicial. 

The  character  of  the  veto  power  is  purely  legislative. 
The  Constitution  provides  that  after  both  Houses 
shall  have  passed  a  bill,  it  shall  be  presented  to  the 
President ;  that  if  he  approve  it,  he  shall  sign  it,  but, 
if  not,  that  he  shall  return  it,  with  his  objection,  to 
the  House  in  which  it  originated,  which  shall  proceed 
to  reconsider  it ;  and  that  if  two-thirds  of  the  House 
agree  to  pass  the  bill,  it  shall  be  sent  with  the  objec- 
tions of  the  President  to  the  other  House,  where  it 
shall  be  reconsidered,  and  if  approved  by  two-thirds 
of  that  House,  it  shall  become  a  law. 

It  has  been  suggested  by  some  that  the  veto  power 
is  executive.  I  do  not  quite  see  how.  Of  course  the 
President  has  no  power  to  introduce  a  bill  into  either 
House.  He  has  the  power  of  recommending  such 
measures  as  he  shall  judge  necessary  and  expedient 
to  the  consideration  of  Congress.  But  he  takes  no 
part  in  the  running  discussion  of  the  bill  after  it  is 
introduced  or  in  its  amendments.  He  has  no  power 
to  veto  parts  of  the  bill  and  allow  the  rest  to  become  a 
law.  He  must  accept  it  or  reject  it,  and  his  rejection 
of  it  is  not  final  unless  he  can  find  one  more  than 
one-third  of  one  of  the  Houses  to  sustain  him  in  his 
veto.  But  even  with  these  qualifications,  he  is  still 
a  participant  in  the  legislation.  Except  for  his  natural 
and  proper  anxiety  not  to  oppose  the  will  of  the  two 
great  legislative  bodies,  and  to  have  harmony  in  the 
government,  the  reasons  which  control  his  action 


must  be  much  like  those  which  affect  the  action  of 
the  members  of  Congress. 

A  discussion  of  the  veto  power  by  Mr.  Edward  Camp- 
bell Mason,  in  a  Harvard  publication,  gives  an  inter- 
esting view  of  its  origin.  The  author  expresses  the 
opinion  that  the  veto  is  the  result  of  the  shrinking  of 
what  was  once  a  broad  affirmative  legislative  function 
of  the  King.  He  says  that  in  early  days  laws  were 
enacted  on  a  petition  of  Parliament  to  the  King,  asking 
for  legislation,  and  that  the  law  became  effective  by 
the  King's  proclamation  declaring  the  law  as  he  wished 
it  to  be.  For  a  long  period  the  King  did  not  confine 
himself  to  the  request  of  Parliament  in  their  petition ; 
but  on  the  occasion  of  each  request  through  his  proc- 
lamation exercised  the  affirmative  power  of  formu- 
lating laws.  As  Parliament  acquired  greater  influence 
they  resented  the  King's  proclaiming  something  differ- 
ent from  that  which  they  requested.  They  therefore 
presented  to  the  King  the  proposed  statute  drawn  in 
proper  and  exact  terms  and  successfully  resisted  his 
giving  it  new  form  and  substance.  He  was  thereafter 
required  to  proclaim  the  legislation  as  requested  or 
veto  it.  His  function  in  legislation  thus  became  one 
of  negation  only.  It  has  been  contended  that  the 
President  may  not  exercise  the  veto  power  except 
when  the  bill  presented  to  him  is  unconstitutional. 
Such  a  view  of  his  duty  is  supposed  to  find  color  of 
support  in  a  proposal  made  and  strongly  advocated  in 
the  Constitutional  Convention.  It  provided  for  the 
revision  of  bills  which  had  passed  both  Houses  by  a 
Council,  to  include  the  President  and  the  Supreme 
Judges,  with  the  power  to  reject  bills  which  had  passed 


both  Houses  when  they  transgressed  the  constitutional 
limits  of  Congressional  discretion.  It  cannot  be  said, 
however,  that  the  provision  for  the  Executive  veto 
as  adopted  in  the  Constitution  implies  any  such  limi- 
tation. It  is  true  that  the  power  is  one  of  negation 
only,  but  the  history  of  its  origin  shows  that  even  in 
its  qualified  form,  it  is  legislative  in  its  nature,  a  brake 
rather  than  a  steam  chest,  but  nevertheless  a  very 
important  part  of  the  machinery  for  making  laws. 
The  Constitution  makes  the  President's  veto  turn  on 
the  question  whether  he  approves  the  bill  or  not. 
The  term  "approve"  is  much  too  broad  to  be  given 
the  narrow  construction  by  which  it  shall  only  author- 
ize the  President  to  withhold  his  signature  when  the 
reason  for  his  disapproval  of  the  bill  is  its  invalidity. 
No  better  word  could  be  found  in  the  language  to 
embrace  the  idea  of  passing  on  the  merits  of  the  bill. 
If  anything  has  been  established  by  actual  precedents, 
it  is  that  a  President  in  signing  or  withholding  signa- 
ture, must  consider  the  wisdom  of  the  bill  as  one  of 
those  responsible  for  its  character  and  effect.  Mr. 
Mason  says  there  were  only  four  Presidents  who  did 
not  veto  bills  on  their  merits.  They  were  Washington, 
the  Adamses  and  Jefferson.  All  the  others  have  done 
so,  and  as  to  the  four  named,  it  is  possible  that  through 
the  agency  of  friendly  Congresses  they  were  able  to 
kill  bills  without  resorting  to  the  veto.  There  are 
other  ways  of  killing  a  cat  than  by  choking  it :  with 
butter.  It  is  often  a  good  deal  easier  for  the  Presi- 
dent to  prevent  the  passage  of  a  bill  by  conference  with 
friendly  committees.  It  does  not  "rock  the  boat" 
so  much. 


Of  course  vetoes  are  more  frequent  when  the  Presi- 
dent and  Congress  differ  politically.  They  were  very 
frequent  in  Mr.  Johnson's  administration  when  there 
was  bitterly  opposed  to  him  a  two-thirds  majority  of 
Republicans  in  each  House.  Again  in  the  tune  of 
Mr.  Hayes,  the  lower  House  of  Congress  was  Demo- 
cratic during  his  whole  four  years.  Both  Houses 
were  Democratic  in  his  last  two  years.  This  led  to  a 
number  of  vetoes  by  Mr.  Hayes  of  bills  enacted  to 
paralyze  the  enforcement  of  Congressional  election 
laws,  and  also  of  measures  concerning  the  exclusion  of 
Chinese,  and  the  monetary  policy  of  the  United  States. 
In  Mr.  Cleveland's  first  term,  he  had  an  adverse 
Congress,  which  resulted  in  many  vetoes  of  special 
pension  bills.  President  Grant,  President  Harrison 
and  I  had  to  face  politically  hostile  Congresses,  which 
naturally  led  to  an  expressed  difference  of  opinion 
between  the  Executive  and  Congress  as  to  the  wisdom 
of  proposed  legislation.  It  is  at  such  a  time  that  one 
hears  from  the  opposition  Congressmen  eloquent  and 
emphatic  denunciation  of  "the  exercise  of  royal  prerog- 
ative by  the  incumbent  of  the  White  House  to  defeat 
the  will  of  the  people."  When  one  new  in  the  Presi- 
dential office  first  hears  a  philippic  of  this  kind,  visions 
of  the  fate  of  Charles  I  may  trouble  him  somewhat, 
but  after  a  time,  especially  if  he  has  indulged  the 
habit  of  reading  past  Congressional  Records,  he  be- 
comes accustomed  to  the  well-worn  expressions  of 
legislators  whom  the  veto  of  a  favorite  bill  has  dis- 
appointed. There  is  a  well-known  aphorism  that 
men  are  different,  but  husbands  are  all  alike.  The 
same  idea  may  be  paraphrased  with  respect  to  Con- 


gressmen.  Congressmen  are  different,  but  when  in 
opposition  to  an  administration  they  are  very  much 
alike  in  their  attitude  and  in  their  speeches.  In  look- 
ing back  through  the  Congressional  debates,  and  in 
attempting  to  run  down  the  history  of  the  improve- 
ment of  the  White  House  grounds,  I  was  much  amused 
to  read  the  speech  of  an  opposition  Congressman 
in  the  severest  condemnation  of  the  expenditure  by 
President  Van  Buren  of  a  comparatively  small  sum 
appropriated  by  Congress  to  improve  the  appearance 
of  the  grounds  of  the  White  House  by  some  landscape 
gardening  and  tree  planting.  He  said  in  effect  that 
the  President  was  aping  the  royalties  of  Europe  in 
attempting  to  create  an  orangery  in  the  rear  of  his 
palace,  in  which  in  majestic  seclusion  he  might  stretch 
his  royal  legs.  As  I  read  this  speech,  I  could  not  but 
think  that  the  genus  of  opposition  Congressmen  had 
not  lost  its  distinctive  qualities. 

In  the  exercise  of  the  veto  power,  the  truth  is  that 
it  often  happens  that  the  President  more  truly  repre- 
sents the  entire  country  than  does  the  majority  vote 
of  the  two  Houses.  His  constituency  is  the  electorate 
of  the  United  States,  and  by  reason  of  that  he  is  much 
freer  from  the  influence  of  local  prejudices  and  of  the 
play  of  those  special  territorial  and  state  interests, 
which,  brought  together  by  log-rolling  methods,  some- 
times constitute  a  majority  in  both  Houses  for  extrav- 
agant or  unwise  legislation.  To  hold  up  the  use  of  the 
Presidential  veto  as  an  exercise  of  royal  prerogative 
is  of  course  utterly  absurd.  It  is  true  that  the  func- 
tion finds  its  prototype  in  the  royal  veto  of  the  British 
Constitution,  but  no  King  of  England  has  dared  to 


exercise  it  for  two-hundred  years.  He  would  lose 
throne  if  he  did.  Under  our  Constitution  the  veto  is  not 
the  act  of  an  hereditary  monarch,  but  of  one  elected 
by  all  the  people  to  represent  all  the  people  and  charged 
by  the  fundamental  law  with  the  responsibility  and 
duty  of  its  exercise  in  proper  cases. 

In  considering  a  bill  presented  to  him  for  signature,  , 
it  is  the  duty  of  the  President  of  course  to  veto  a  bill 
no  matter  how  much  he  approves  its  expediency,  if 
he  believes  that  it  is  contrary  to  the  constitutional 
limitations  upon  the  power  of  Congress.  He  has" 
taken  an  oath  to  the  best  of  his  ability  "to  preserve, 
protect  and  defend  the  Constitution  of  the  United 
States,"  and  he  cannot  escape  his  obligation  to  do  so 
when  the  question  before  him  is  whether  he  shall 
approve  the  bill  passed  by  both  Houses  which  violates 
the  Constitution  he  has  given  his  plighted  faith  to 
maintain  and  enforce.  His  duty  is  as  high  and  ex- 
acting in  this  matter  as  is  the  duty  of  the  Supreme 
Court  of  the  United  States.  Indeed,  his  function  in 
this  regard  is  somewhat  broader  than  that  of  the 
Court.  The  question  with  him  is  whether,  in  his 
judgment,  the  bill  is  inconsistent  with  the  Constitu- 
tion. The  question  which  the  Court  has  to  con- 
sider when  an  act  of  Congress  is  before  it  and  its 
validity  is  questioned,  is  not  whether  the  Court  as  an 
original  question  thinks  the  act  to  be  a  violation  of 
the  Constitution.  The  fact  that  Congress,  a  co- 
ordinate branch  of  the  government,  has  enacted  the 
law,  and  presumably  has  decided  it  to  be  within  its 
legislative  power,  raises  a  very  strong  presumption 
that  the  act  is  valid.  The  Court,  before  holding 


otherwise,  is  bound  to  find  that  beyond  reasonable 
doubt  the  act  is  not  within  the  limit  of  the  discretion 
of  the  legislature  in  construing  its  own  powers  to 
decide  that  the  act  in  question  is  within  those  powers. 
When  a  branch  of  the  government  is  vested  with  a 
power,  defined  and  limited,  it  must  first  construe 
the  limitations  upon  its  own  powers  in  exercising 
them ;  and  what  the  Supreme  Court  has  to  say  is 
that  it  has  abused  that  discretion  and  beyond  a  reason- 
able doubt  has  transgressed  its  limits.  It  may  seem 
that  this  is  not  a  broad  distinction,  but  practically 
it  may  be  made  a  real  one  by  a  conscientious  court.  If 
the  Court  has  any  doubt  about  the  validity  of  a  law,  it 
is  bound  to  sustain  it,  and  it  has  no  right  to  set  aside 
a  law  merely  because  of  a  difference  of  opinion  between 
it  and  the  legislature  as  to  the  legislative  powers. 

This  difference  has  been  emphasized  by  the  elder 
Professor  Thayer  of  Harvard  in  his  comments  on  the 
Constitution.  He  has  wisely  and  ably  explained  and 
emphasized  the  necessity  for  maintaining  the  distinc- 
tion. A  serious  doubt  of  the  validity  of  a  proposed  bill 
may  well  lead  a  member  of  Congress  to  vote  against  it, 
or  the  President  to  veto  it ;  but  such  a  doubt  would  not 
justify  the  Court  in  treating  the  act  as  a  nullity,  unless 
it  reaches  an  indisputable  conviction  that  Congress 
has  exceeded  its  powers,  after  indulging  the  properly 
strong  presumption  in  favor  of  the  act's  validity.  It 
may  very  well  happen,  therefore,  that  a  President 
may  veto  a  bill,  Congress  may  pass  it  over  his  veto, 
the  Supreme  Court  may  sustain  the  law,  and  yet  the 
President  and  the  Court  have  the  same  serious  doubt 
as  to  its  validity  which  would  properly  lead  to  the 


President's  veto  but  not  to  the  Court's  annulment  of 
it  after  it  has  been  passed  by  Congress.  I  can  illus- 
trate what  I  say  by  referring  to  a  bill  which  I  vetoed 
and  which  was  passed  over  my  veto.  It  was  the  so- 
called  Webb  bill,  which  declared  the  shipping  of  liquor 
from  one  state  to  another,  where  its  sale  was  unlawful 
by  the  law  of  the  state,  to  be  Federally  unlawful.  It 
seemed  to  me  that  this  was  in  effect  a  delegation  of 
power  to  the  states  to  make  differing  rules  with  respect 
to  interstate  commerce  in  something  which  up  to  this 
tune  has  been  regarded  as  a  lawful  subject  of  such 
commerce.  If  Congress  wished  to  declare  liquor  an 
unlawful  subject  of  commerce  from  one  state  to 
another,  Congress  would  have  the  power;  but  to 
attribute  to  Congress  the  power  to  say  that  one  state 
might  declare  something  unlawful  commerce  among 
the  states,  while  another  might  declare  it  lawful, 
seemed  to  me  to  be  a  serious  interference  with  the 
proper  uniform  and  beneficent  operation  of  the  inter- 
state commerce  clause.  I  properly  had  much  less 
hesitation  in  vetoing  the  bill  than  the  Supreme  Court 
should  have  in  declaring  it  to  be  beyond  the  permis- 
sible limits  of  Congressional  discretion.  In  other 
words,  the  Court  may  entertain  the  same  serious  doubt 
of  the  validity  of  the  bill  that  led  to  my  veto  of  it,  and 
still  not  find  the  question  so  clear  as  to  overcome  the 
presumption  in  favor  of  the  validity  of  the  law  because 
Congress  has  enacted  it.  I  emphasize  this  point  be- 
cause I  think  it  is  of  the  highest  importance  that  the 
constitutional  validity  of  a  measure  should  be  fairly 
considered  in  the  legislature  and  by  him  who  exercises 
the  veto  power. 


English  publicists  have  criticized  the  course  of  dis- 
cussion under  a  written  Constitution  by  our  legis- 
latures. They  maintain  that  it  leads  to  a  consideration 
of  questions  of  the  validity  of  proposed  legislation 
rather  than  of  its  expediency.  I  do  not  think  that 
this  criticism  is  either  weighty  or  correct.  We  do 
not  discuss  the  validity  of  the  bills  in  the  legislatures 
enough.  The  governors  of  the  states  do  not  consider 
the  constitutionality  of  bills  presented  them  for  sig- 
nature as  they  ought.  A  measure  proposed  is  popular 
with  the  constituents  of  a  legislator,  and  if  a  question 
is  raised  as  to  its  constitutional  validity,  he  is  prone 
to  say,  "Well,  my  people  wish  it.  If  it  is  invalid,  the 
court  will  declare  it  to  be  invalid.  Therefore,  why 
should  I  run  the  risk  of  incurring  unpopularity  when  it 
is  not  my  function  to  enforce  the  Constitution  ?  "  Laws 
are  thus  passed  through  legislatures  which  palpably 
violate  the  Constitution  just  because  constituents  of 
legislators  think  that  the  law  would  be  a  good  thing. 
The  governor  signs  it  with  the  same  view.  The  burden 
is  thus  transferred  to  the  Court.  The  Court  holds  the 
law  to  be  invalid  and  the  popular  odium  arising  from 
a  defeat  of  the  measure  is  visited  upon  the  Court,  which 
alone  of  the  three  branches  of  the  government  has 
respected  its  oath  of  office  in  the  preservation  of  the 
Constitution.  \This  is  one  of  the  fruitful  sources  of 
the  unjust  attacks  upon  the  courts  of  the  country  of 
which  we  have  had  so  many  in  the  last  ten  years.  You 
well  remember  the  story  which  Mr.  Roosevelt  tells 
of  a  conversation  which  he  had  with  the  Tammany 
politician,  Tim  Campbell,  when  they  were  both  mem- 
bers of  the  legislature,  in  which  Tim  appealed  to  him 


to  vote  for  a  particular  bill  of  his  and  Mr.  Roosevelt 
replied,  "I  cannot  do  it,  Tim,  because  it  is  plainly 
unconstitutional."  This  called  forth  from  Tim  the 
well-known  expression,  "What  the  divil  is  the  Con- 
stitution between  f rinds?"  That  is  the  exact  spirit 
which  has  led  to  the  neglect  of  their  constitutional 
obligation  by  legislators,  and  their  enactment  of  so 
many  invalid  measures.  I  have  sometimes  been  in- 
clined to  think  that  after  his  invention  and  recommen- 
dation of  the  recall  of  judicial  decisions,  Mr.  Roosevelt 
was  leaning  a  little  more  to  Tim's  view  of  the  Con- 
stitution than  at  the  time  when  this  conversation  was 

The  Constitution  provides  that  if  the  President  does 
not  return  the  bill  presented  to  him  within  ten  days 
(Sundays  excepted)  after  its  presentation,  it  is  to 
become  law  just  as  if  he  had  signed  it,  unless  Congress 
by  adjourning  prevents  its  return,  in  whiclj  case  it  is 
not  to  become  a  law.  This  enables  the  President,  at 
the  close  of  a  session,  when  bills  are  presented  to  him 
in  great  number,  and  when  he  usually  goes  to  the 
Capitol  for  the  purpose  of  signing  them,  just  before 
the  adjournment  of  Congress,  to  defeat  a  bill  by  what 
is  called  a  pocket  veto,  that  is  by  failing  to  sign  it. 
If  he  does  not  return  it  to  Congress  with  his  objections,  y 
there  is  no  opportunity  for  Congress  to  pass  it  over 
his  veto,  and  therefore  his  failure  to  sign  is  final. 

It  has  never  been  decided  by  the  Supreme  Court  > 
whether  a  President  by  signing  a  bill  within  ten  days 
after  its  passage  may  give  it  validity  as  a  law  if  Con- 
gress adjourns  within  that  ten  days,  and  before  his 
signature.     The  Supreme  Court  has  said  that  he  may 


sign  a  bill  during  a  recess  of  Congress.  Practice  makes 
it  clear,  however,  that  he  may  not  do  this  after  adjourn- 
ment. There  is  only  one  instance  of  such  a  signature. 
President  Monroe  failed  to  sign  a  bill  which  he  had 
intended  to  sign.  After  conferring  with  his  Cabinet, 
he  decided  it  was  wiser  to  ask  Congress  to  reenact  it. 
President  Lincoln  did  sign  a  bill  after  an  adjournment 
and  the  bill  was  filed  with  the  Secretary  of  State 
and  printed  among  the  statutes.  When  the  matter 
was  brought  to  the  attention  of  the  Senate,  however, 
the  power  of  the  President  to  do  so  was  questioned  and 
denied,  and  a  new  bill  of  substantially  the  same  purport 
passed  both  Houses  and  was  signed  by  the  President. 

The  language  of  the  Constitution  with  reference  to 
what  the  President  shall  do  with  a  bill  leaves  only  two 
alternatives,  one  that  if  he  approve  it,  he  shall  sign  it, 
the  other  that  if  he  does  not  approve  it,  he  shall  return  it 
with  his  objections  to  Congress.  It  does  provide  that  if 
he  fails  to  return  it  within  ten  days,  it  shall  become  a 
law,  but  this  would  seem  to  be  only  a  provision  for  his 
neglect.  In  practice,  however,  some  Presidents  have 
allowed  bills  to  become  law  without  their  signature, 
with  the  idea,  I  presume,  that  their  objections  to  the  bill 
do  not  justify  a  veto.  Mr.  Cleveland  looked  at  the 
matter  in  this  way  when  he  allowed  the  Gorman- 
Wilson  Tariff  bill  to  become  a  law  without  his  signa- 
ture, though  he  denounced  it  in  most  emphatic  terms 
in  a  letter  to  Mr.  Catchings  of  the  House  as  "an  act 
of  perfidy  and  dishonor."  My  own  judgment  is  that 
the  wiser  course  in  such  a  case  is  for  the  President  to 
sign  the  bill,  with  a  memorandum  of  his  reasons  for 
doing  so,  in  spite  of  his  objections. 


The  Federal  Executive  veto  does  not  include  the 
power  to  veto  a  part  of  a  bill.  The  lack  of  such  a 
power  in  the  President  has  enabled  Congress  at  times 
to  bring  to  bear  a  pressure  on  him  to  permit  legislation 
to  go  through  that  otherwise  he  would  veto.  Ap- 
propriation bills  are  necessary  for  the  life  of  the  gov- 
ernment, and  if  Congress  by  putting  what  is  called  a 
"rider"  of  general  legislation  on  one  of  these  says,, 
"  We'll  hamstring  the  government  in  respect  to  the 
departments  that  these  appropriation  bills  support, 
unless  you  consent  to  this,"  it  puts  the  President  in 
an  embarrassing  situation. 

In  President  Hayes'  Administration,  one  of  the 
issues  that  he  had  with  the  Democratic  Congress  was 
in  respect  to  the  enforcement  of  the  Federal  Con- 
gressional election  laws.  The  Democratic  Congress 
insisted  first  in  imposing  a  rider  on  the  Military  Ap- 
propriation bill  for  the  support  of  the  army,  providing 
that  the  President  should  not  be  able  to  use  his  civil 
officers  to  maintain  peace  at  the  polls.  This  really 
had  no  relation  to  the  use  of  the  army  to  interfere 
with  elections.  President  Hayes  vetoed  the  bill. 
Congress  finally  passed  the  Army  Appropriation 
bill  without  the  rider,  but  thereupon  passed  the  Legis- 
lative, Executive  and  Judicial  Appropriation  bill, 
with  a  similar  rider,  which  the  President  again  vetoed. 
Then  Congress  passed  this  latter  appropriation  bill, 
but  in  order  to  prevent  the  use  of  marshals  to  preserve 
peace  at  the  polls,  left  out  any  provision  for  the  mar- 
shals and  the  executive  officers  of  the  courts  of  the 
United  States.  That  state  of  affairs  continued  for 
two  years,  to  the  great  embarrassment  of  the  courts. 


Finally,  Congress  surrendered  after  the  election  of 
President  Garfield,  and  paid  the  salaries,  fees  and 
expenses  of  the  marshals  and  of  the  executive  officers 
of  the  courts  which  had  been  withheld  from  them  for 
two  years.  In  the  course  of  the  controversy,  Presi- 
dent Hayes  used  this  language : 

The  enactment  of  this  bill  into  a  law  will  establish  a  precedent 
which  will  tend  to  destroy  the  equal  independence  of  the  several 
branches  of  the  Government.  Its  principle  places  not  merely 
the  Senate  and  the  Executive,  but  the  Judiciary  also,  under  the 
coercive  dictation  of  the  House.  .The  House  alone  will  be  the 
judge  of  what  constitutes  a  grievance,  and  also  of  the  means  and 
measure  of  redress.  An  act  of  Congress  to  protect  elections  is 
now  the  grievance  complained  of;  but  the  House  may  on  the 
same  principle  determine  that  any  other  act  of  Congress,  a  treaty 
made  by  the  President  with  the  advice  and  consent  of  the  Senate, 
a  nomination  or  appointment  to  office,  or  that  a  decision  or  opinion 
of  the  Supreme  Court  is  a  grievance,  and  that  the  measure  of  re- 
dress is  to  withhold  the  appropriations  required  for  the  support  of 
the  offending  branch  of  the  Government. 

Believing  that  this  bill  is  a  dangerous  violation  of  the  spirit 
and  meaning  of  the  Constitution,  I  am  compelled  to  return  it  to 
the  House  in  which  it  originated  without  my  approval.  The 
qualified  negative  with  which  the  Constitution  invests  the  Presi- 
dent is  a  trust  that  involves  a  duty  which  he  can  not  decline  to 
perform.  With  a  firm  and  conscientious  purpose  to  do  what  I 
can  to  preserve  unimpaired  the  constitutional  powers  and  equal 
independence,  not  merely  of  the  Executive,  but  of  every  branch 
of  the  Government,  which  will  be  imperiled  by  the  adoption  of 
the  principle  of  this  bill,  I  desire  earnestly  to  urge  upon  the  House 
of  Representatives  a  return  to  the  wise  and  wholesome  usage  of 
the  early  days  of  the  Republic,  which  excluded  from  appropriation 
bills  all  irrelevant  legislation. 

Congress  attempted  the  same  method  in  my  own 
administration,  when  a  rider  was  placed  upon  the 


great  Sundry  Civil  Appropriation  bill  forbidding  the 
use  of  a  special  appropriation  to  enforce  the  anti-trust 
law  act  in  prosecuting  farmers  and  trades-unions  who 
were  found  violating  that  act.  This  introduced,  it 
seemed  to  me,  a  most  pernicious  discrimination  and 
was  calculated  and  intended  to  produce  a  lack  of  uni- 
formity in  the  application  of  what  should  be  a  general 
law.  It  created  a  privileged  class  and  was  insisted  on 
merely  for  political  purposes.  I  vetoed  the  bill.  A 
similar  bill  with  a  similar  rider  was  subsequently 
signed  by  President  Wilson,  but  under  protest  against 
the  principle  of  such  discrimination. 

It  has  been  suggested  that  such  an  abuse  of  power 
by  Congress,  for  that  it  certainly  is,  could  be  avoided 
by  giving  to  the  President  the  power  to  veto  special 
items  and  clauses  of  an  appropriation  bill.  This 
power  is  exercised  by  some  governors  in  states,  notably 
the  governor  of  New  York.  While  for  some  pur- 
poses, it  would  be  useful  for  the  Executive  to  have 
the  power  of  partial  veto,  if  we  could  always  be  sure 
of  its  wise  and  conscientious  exercise,  I  am  not  entirely 
sure  that  it  would  be  a  safe  provision.  It  would 
greatly  enlarge  the  influence  of  the  President,  already 
large  enough  from  patronage  and  party  loyalty  and 
other  causes.  I  am  inclined  to  think  that  it  is  better 
to  trust  to  the  action  of  the  people  in  condemning  the 
party  which  becomes  responsible  for  such  riders,  than 
to  give,  in  such  a  powerful  instrument  like  this,  a 
temptation  to  its  sinister  use  by  a  President  eager  for 
continued  political  success.  This  use  by  Congress  of 
riders  upon  appropriation  bills  to  force  a  President  to 
consent  to  legislation  which  he  disapproves  shows  a  spirit 


of  destructive  factionalism  and  a  lack  of  a  sense  of 
responsibility  for  the  maintenance  of  the  government. 
If  such  a  sense  of  responsibility  does  not  pervade  all 
branches  of  the  government,  Executive,  Legislative  and 
Judicial,  the  government  cannot  remain  a  going  con- 
cern. Instances  of  abuses  of  this  sort  by  Congress, 
therefore,  must  be  regarded  as  exceptional,  as  indeed 
they  are,  and  an  effort  to  remedy  them  by  a  change 
in  constitutional  provision  would  be  legislation  in- 
tended to  pump  patriotism  into  public  officers  by 
force.  This  method  will  certainly  be  found  futile  if 
such  patriotism  and  sense  of  responsibility  do  not  exist 
without  it.  If  it  is  urged  that  the  President  should 
have  the  power  to  veto  items  in  an  appropriation 
bill  to  restrain  Legislative  extravagance,  the  answer 
is  that  this  is  not  the  best  way.  The  proper  remedy 
for  that  evil  is  the  budget  amendment  proposed  by 
the  Constitutional  Convention  of  New  York,  which  I 
have  already  discussed. 


IN  the  first  chapter,  I  considered  the  general  dis- 
tribution of  governmental  powers  and  the  veto  power 
of  the  President,  his  only  Legislative  function.  I  now 
begin  a  consideration  of  his  Executive  functions,  in 
some  of  which  he  or  his  subordinates  exercise  what  I 
shall  hope  to  show  are  quasi-legislative  and  quasi- 
judicial  powers.  In  this  chapter,  I  propose  to  discuss 
what  may  perhaps  be  called  the  minor  functions  of 
the  President,  and  shall  devote  some  of  the  time  also 
to  the  personal  aspects  of  the  great  office.  I  class 
among  the  President's  minor  functions,  the  powers  to 
consult  the  heads  of  Executive  departments  as  to  the 
questions  arising  in  their  respective  departments,  to 
inform  Congress  of  the  state  of  the  Union,  to  recom- 
mend measures  to  it  which  he  may  deem  wise,  ex- 
pedient and  necessary ;  to  issue  commissions  to  officers 
of  the  United  States,  and  to  convene  Congress  in  extra 
session,  and  adjourn  it  in  case  of  disagreement  between 
the  Houses. 

The  Constitution  does  not  use  the  term  "Cabinet," 
and  does  not  recognize  a  Presidential  Council  as  a  legal 
body.  There  has  crept  into  some  statutes,  loosely 
drawn,  the  phrase  "Cabinet  Officer,"  and  the  Supreme 
Court  Judges  in  their  discussions  of  cases  sometimes 
use  it.  It  will  be  observed,  however,  that  while  the 
Constitution  refers  to  the  head  of  a  department  and 



authorizes  the  President  to  make  him  an  adviser  as  to 
matters  in  his  own  department,  it  contains  no  sugges- 
tion of  a  meeting  of  all  the  department  heads,  in  con- 
sultation over  general  governmental  matters.  The 
Cabinet  is  a  mere  creation  of  the  President's  will.  It 
is  an  extra-statutory  and  extra-constitutional  body. 
It  exists  only  by  custom.  If  the  President  desired  to 
dispense  with  it,  he  could  do  so.  As  it  is,  the  custom 
is  for  the  Cabinet  to  meet  twice  a  week,  and  for  the 
President  to  submit  to  its  members  questions  upon 
which  he  thinks  he  needs  their  advice,  and  for  the 
members  to  bring  up  such  matters  in  their  respective 
departments  as  they  deem  appropriate  for  Cabinet 
conference  and  general  discussion. 

In  the  British  government,  the  Cabinet  is  not  a 
statutory  body.  It  exists  there,  as  with  us,  only  by 
custom.  But  this  fact  does  not  derogate  from  the 
permanence  and  importance  of  the  English  Cabinet, 
because,  unlike  ours,  the  constitution  of  government 
in  Great  Britain  is  largely  by  custom.  The  distinctive 
feature  in  the  present  British  political  structure  is  that  a 
vote  in  the  House  of  Commons,  indicating  a  want  of  con- 
fidence in  the  Premier  and  his  associates,  requires  their 
resignation ;  yet  this  only  abides  in  custom.  The  Eng- 
lish Premier  in  selecting  his  associates  in  his  Cabinet 
takes  those  members  of  Parliament  who  will  effectively 
cooperate  with  him  in  retaining  the  indispensable  back- 
ing of  the  House  of  Commons  majority.  It  is  needful 
for  a  ministry,  therefore,  that  the  members  of  the 
Cabinet  in  such  a  government  shall  be  of  independent 
strength  and  influence  with  parliamentary  members. 
They  are  partners  of  the  Premier  and  not  merely  his 


appointees  and  advisers,  and  have  an  importance  which 
Cabinet  officers  do  not  have  with  us.  As  a  member  of 
the  government,  each  English  Cabinet  officer  must  be 
prepared  on  the  floor  of  one  House  or  the  other  to  answer 
questions,  defend  the  government,  and  advocate  the 
legislation  which  the  government  urges,  and  for  which 
it  becomes  responsible.  It  follows  that  an  English 
Cabinet  officer  must  have  qualifications  not  now  re- 
quired of  a  member  of  a  Presidential  Cabinet. 

I  am  strongly  in  favor  of  a  change  in  our  existing 
system,  by  which  the  importance  and  influence  of 
Cabinet  officers  shall  be  increased.  Without  any 
change  in  the  Constitution,  Congress  might  well  pro- 
vide that  heads  of  departments,  members  of  the  Presi- 
dent's Cabinet,  should  be  given  access  to  the  floor  of 
each  House  to  introduce  measures,  to  advocate  their 
passage,  to  answer  questions,  and  to  enter  into  the  de- 
bate as  if  they  were  members,  without  of  course  the 
right  to  vote.  Without  any  express  constitutional 
authority,  Congress  has  done  this  in  the  case  of  dele- 
gates from  the  territories.  Why  may  it  not  therefore 
do  it  with  respect  to  the  heads  of  departments? 

This  would  impose  on  the  President  greater  difficulty 
in  selecting  his  Cabinet,  and  would  lead  him  to  prefer 
men  of  legislative  experience  who  have  shown  their 
power  to  take  care  of  themselves  in  legislative  debate, 
It  would  stimulate  the  head  of  each  department  by  the 
fear  of  public  and  direct  inquiry  into  a  more  thorough 
familiarity  with  the  actual  operations  of  his  department 
and  into  a  closer  supervision  of  its  business.  On  the 
other  hand,  it  would  give  the  President  what  he  ought 
to  have,  some  direct  initiative  in  legislation  and  an 


opportunity  through  the  presence  of  his  competent 
representatives  in  Congress  to  keep  each  House  advised 
of  the  facts  in  the  actual  operation  of  the  government. 
The  time  lost  in  Congress  over  useless  discussion  of 
issues  that  might  be  disposed  of  by  a  single  statement 
from  the  head  of  a  department,  no  one  can  appreciate 
unless  he  has  filled  such  a  place.  In  my  annual 
message,  December  19,  1912,  I  urged  this  proposal 
upon  Congress,  as  follows : 

This  is  not  a  new  proposition.  In  the  House  of  Representatives, 
in  the  Thirty-eighth  Congress,  the  proposition  was  referred  to  a 
select  committee  of  seven  Members.  The  committee  made  an 
extensive  report,  and  urged  the  adoption  of  the  reform.  The 
report  showed  that  our  history  had  not  been  without  illustration 
of  the  necessity  and  the  examples  of  the  practice  by  pointing  out 
that  in  early  days  Secretaries  were  repeatedly  called  to  the  presence 
of  either  House  for  consultation,  advice,  and  information.  It 
also  referred  to  remarks  of  Mr.  Justice  Story  in  his  Commentaries 
on  the  Constitution,  in  which  he  urgently  presented  the  wisdom 
of  such  a  change.  This  report  is  to  be  found  in  Volume  I  of  the 
Reports  of  Committees  of  the  First  Session  of  the  Thirty-eighth 
Congress,  April  6,  1864. 

Again,  on  February  4,  1881,  a  select  Committee  of  the  Senate 
recommended  the  passage  of  a  similar  bill,  and  made  a  report  in 
which,  while  approving  the  separation  of  the  three  branches,  the 
executive,  legislative,  and  judicial,  they  point  out  as  reason  for 
the  proposed  change  that,  although  having  a  separate  existence, 
the  branches  are  "to  cooperate,  each  with  the  other,  as  the  differ- 
ent members  of  the  human  body  must  cooperate,  with  each  other, 
in  order  to  form  the  figure  and  perform  the  duties  of  a  perfect  man. 

The  report  is  as  follows  : 

This  system  will  require  the  selection  of  the  strongest  men  to 
be  heads  of  departments  and  will  require  them  to  be  well  equipped 
with  the  knowledge  of  their  offices.  It  will  also  require  the  strong- 


est  men  to  be  the  leaders  of  Congress  and  participate  in  debate. 
It  will  bring  these  strong  men  in  contact,  perhaps  into  conflict, 
to  advance  the  public  weal,  and  thus  stimulate  their  abilities  and 
their  efforts,  and  will  thus  assuredly  result  to  the  good  of  the  country. 
If  it  should  appear  by  actual  experience  that  the  heads  of  depart- 
ments in  fact  have  not  time  to  perform  the  additional  duty  imposed 
on  them  by  this  bill,  the  force  of  their  offices  should  be  increased 
or  the  duties  devolving  on  them  personally  should  be  diminished. 
An  under-secretary-  should  be  appointed  to  whom  could  be  con- 
fided that  routine  of  administration  which  requires  only  order  and 
accuracy.  The  principal  officers  could  then  confine  their  attention 
to  those  duties  which  require  wise  discretion  and  intellectual 
activity.  Thus  they  would  have  abundance  of  time  for  their 
duties  under  this  bill.  Indeed,  your  committee  believes  that  the 
public  interest  would  be  subserved  if  the  Secretaries  were  relieved 
of  the  harassing  cares  of  distributing  clerkships  and  closely  super- 
vising the  mere  machinery  of  the  departments.  Your  committee 
believes  that  the  adoption  of  this  bill  and  the  effective  execution 
of  its  provisions  will  be  the  first  step  toward  a  sound  civil-service 
reform  which  will  secure  a  larger  wisdom  in  the  adoption  of  policies 
and  a  better  system  in  their  execution. 





J.  G.  ELAINE. 

M.  C.  BUTLER. 


O.  H.  PLATT. 

J.  T.  FARLEY. 

It  would  be  difficult  to  mention  the  names  of  higher  authority 
in  the  practical  knowledge  of  our  government  than  those  which 
are  appended  to  this  report. 

Official  minutes  are  not  kept  of  the  Cabinet  meetings. 
Everything  is  informal,  except  that  the  President  sits 
at  the  head  of  the  table,  and  the  seats  of  the  Cabinet 


members  are  assigned  around  the  table  according  to 
official  precedence,  that  is  according  to  the  order  in 
which  under  the  law  the  Cabinet  officers  succeed  to 
the  Presidency  on  the  death  of  the  President  and  the 
Vice-President,  which  is  nearly  in  accordance  with  the 
order  of  the  establishment  of  the  various  departments. 

The  Executive  office  of  the  President  is  not  a  record- 
ing office.  The  vast  amount  of  correspondence  that 
goes  through  it,  signed  either  by  the  President  or  his 
Secretaries,  does  not  become  the  property  or  a  record 
of  the  government,  unless  it  goes  on  to  the  official  files 
of  the  department  to  which  it  may  be  addressed. 
The  retiring  President  takes  with  him  all  of  the 
correspondence,  original  and  copies,  which  he  carried 
on  during  his  administration.  Thus  there  is  lost 
to  public  record  some  of  the  most  interesting  docu- 
ments of  governmental  origin  bearing  on  the  history 
of  an  administration.  It  is  a  little  like  what  Mr. 
Charles  Francis  Adams  told  me  of  the  diplomatic 
records  of  the  British  Foreign  Office.  It  has  long  been 
the  custom  for  the  important  Ambassadors  of  Great 
Britain  to  carry  on  a  personal  correspondence  with  the 
Secretary  of  State  for  Foreign  Affairs,  which  is  not  put 
upon  the  files  of  the  department,  but  which  gives  a 
much  more  accurate  and  detailed  account  of  the  dip- 
lomatic relations  of  Great  Britain  than  the  official  files. 
The  only  way  in  which  historians  can  get  at  this,  is 
through  the  good  offices  of  the  families  of  the  deceased 
Ambassadors  and  Foreign  Secretaries  in  whose  private 
files  they  may  be  preserved. 

Originally  the  State  Department  was  supposed  to 
be  the  department  through  which  Executive  acts  were 


made  public,  and  in  which  they  were  recorded.  The 
Secretary  of  State  is  the  custodian  of  the  great  seal  of 
the  government,  and  now  when  the  President  acts  in 
general  matters  not  affecting  a  particular  department, 
and  his  act  needs  attestation  by  seal,  the  Secretary  of 
State  witnesses  the  signature  of  the  President  and 
attaches  the  seal.  In  departmental  matters,  however, 
where  the  President  has  to  act,  as  in  issuing  commis- 
sions for  officers  in  particular  departments,  the  com- 
missions are  signed  by  the  President,  attested  by  the 
Secretary  of  the  particular  department,  and  a  seal  of 
that  department  attached.  Thus  the  commissions  of 
Federal  Judges  bear  the  signatures  of  the  President 
and  the  Attorney-General,  those  of  army  officers  the 
signatures  of  the  President  and  the  Secretary  of  War, 
and  those  of  naval  officers  the  signatures  of  the  Presi- 
dent and  the  Secretary  of  the  Navy. 

Referring  again  to  the  Cabinet  meetings,  Mr.  Lin- 
coln is  said  to  have  remarked  that  in  the  Cabinet  after 
discussion  and  intimation  of  opinions,  there  was  only 
one  vote  —  and  that  unanimous  —  it  was  the  vote  of 
the  President.  It  is  interesting  and  instructive  to 
note  Mr.  Jefferson's  comment  on  the  operation  of  the 
Cabinet  in  Washington's  day.  A  French  publicist 
wrote  him  a  letter  advocating  a  plural  executive  for  a 
free  government,  and  asked  his  comment  upon  it.  He 
answered,  dissenting  from  the  publicist's  view,  and 
approving  the  plan  of  our  Constitution  as  follows : 

The  failure  of  the  French  Directory  seems  to  have  authorized  a 
belief  that  the  form  of  a  plurality,  however  promising  in  theory,  is 
impracticable  with  men  constituted  with  the  ordinary  passions, 
while  the  tranquil  and  steady  tenor  of  our  single  executive,  during 


a  course  of  twenty-two  years  of  the  most  tempestuous  times  the 
history  of  the  world  has  ever  presented,  gives  a  rational  hope  that 
this  important  problem  is  at  length  solved.  Aided  by  the  counsels 
of  a  Cabinet  of  heads  of  departments  originally  four,  but  now  five, 
with  whom  the  President  consults,  either  singly  or  all  together, 
he  has  the  benefit  of  their  wisdom  and  information,  brings  their 
views  to  one  center,  and  produces  an  unity  of  action  and  direction 
in  all  the  branches  of  the  government.  The  excellence  of  this  con- 
struction of  the  executive  power  has  already  manifested  itself 
here  under  very  opposite  circumstances.  During  the  administra- 
tion of  our  first  President,  his  Cabinet  of  four  members  were  equally 
divided  by  as  marked  an  opposition  of  principle  as  monarchism 
and  republicanism  could  bring  into  conflict.  Had  that  Cabinet 
been  a  directory,  like  positive  and  negative  quantities  in  algebra, 
the  opposing  wills  would  have  balanced  each  other  and  produced 
a  state  of  absolute  inaction.  But  the  President  heard  with  calm- 
ness the  opinions  and  reasons  of  each,  decided  the  course  to  be 
pursued,  and  kept  the  government  steadily  in  it,  unaffected  by  the 
agitation.  The  public  knew  well  the  dissensions  of  the  Cabinet, 
but  never  had  an  uneasy  thought  on  their  account,  because  they 
knew  also  they  had  provided  a  regulating  power  which  would  keep 
the  machine  in  steady  movement. 

The  picture  of  the  Cabinet  of  Washington's  day, 
with  Jefferson  sitting  on  one  side  of  the  table  and 
Hamilton  on  the  other,  at  sword's  point  on  most 
political  and  governmental  issues,  is  very  interesting. 
The  admirable  poise  of  the  Father  of  his  Country  was 
never  more  clearly  proven  than  by  the  fact  that  he  was 
able  to  carry  on  an  administration  as  long  as  he  did, 
with  such  a  division  in  his  Cabinet.  All  Cabinets  are 
not  like  this.  Many  of  them  are  most  harmonious, 
and  to  many  of  the  participants  such  meetings  bring 
back  the  pleasantest  memories.  Mr.  Jefferson  him- 
self, in  commenting  on  his  own  Cabinet,  gives  a  very 
different  picture  from  that  of  the  Cabinet  of  Washing- 


ton,  for  he  says  of  his  own  Cabinet  to  the  same  corre- 
spondent, in  the  letter  I  have  already  referred  to : 

There  never  arose,  during  the  whole  time,  an  instance  of  an 
unpleasant  thought  or  word  between  the  members.  We  some- 
times met  under  differences  of  opinion,  but  scarcely  ever  failed, 
by  conversing  and  reasoning,  so  to  modify  each  other's  ideas  as 
to  produce  an  unanimous  result.  Yet,  able  and  amicable  as  the 
members  were,  I  am  not  certain  this  would  have  been  the  case, 
had  each  possessed  equal  and  independent  powers.  Ill-defined 
limits  of  their  respective  departments,  jealousies,  trifling  at  first, 
but  nourished  and  strengthened  by  repetition  of  occasions,  intrigues 
without  doors  of  designing  persons  to  build  an  importance  to  them- 
selves on  the  divisions  of  others,  might,  from  small  beginnings, 
have  produced  persevering  oppositions.  But  the  power  of  decision 
in  the  President  left  no  object  for  internal  dissension,  and  external 
intrigue  was  stifled  in  embryo  by  the  knowledge  which  incendiaries 
possessed,  that  no  division  they  could  foment,  would  change  the 
course  of  the,  executive  power. 

It  is  noteworthy  that  the  Cabinet  in  which  there  was 
more  of  rivalry  and  intrigue  and  bitterness  than  in  any, 
except  that  of  Washington,  was  Lincoln's.  Thus  the 
division  of  their  Cabinets  into  cliques,  the  disloyalty  of 
some  of  them  and  their  conflicting  ambitions  greatly  in- 
creased the  heavy  burdens  of  our  two  greatest  Presidents. 

The  power  and  duty  of  the  President  to  inform  Con- 
gress on  the  state  of  the  Union,  and  to  recommend 
measures  for  its  adoption,  need  very  little  comment, 
except  to  say  that  President  Washington  and  Presi- 
dent Adams  treated  the  discharge  of  this  duty  as  the 
occasion  for  visiting  Congress  in  person  and  delivering 
their  communications  orally.  The  Senate  in  Wash- 
ington's day  was  a  small  body  of  twenty-eight  or 
thirty,  and  when  the  President  had  made  a  treaty, 
or  was  about  to  make  one,  and  wished  advice  and 


consent  of  the  Senate,  he  repaired  in  person  to  the 
Senate  Chamber.  President  Washington  had  one 
annoying  experience,  of  which  Senator  Maclay  speaks 
in  his  diary :  Through  the  assistance  of  General 
Knox,  Secretary  of  War,  who  had  dealt  much  with 
the  Indians,  he  had  made  treaties  with  certain  tribes. 
He  went  with  the  treaties  to  the  Senate  to  ask  its 
consent,  and  Knox  accompanied  him.  Washington 
explained  the  treaties  and  asked  their  confirmation. 
The  Senate  wished  to  delay  and  put  the  matter  over. 
Maclay  says  that  he  made  the  motion  to  postpone 
because  he  saw  no  chance  of  a  fair  investigation  of  a 
subject  while  the  President  sat  there  with  his  Secre- 
tary of  War,  to  support  his  opinions  and  overawe  the 
timid  and  neutral  part  of  the  Senate.  It  was  suggested 
that  the  matter  be  referred  to  a  committee.  "As  I 
sat  down,"  Maclay  says,  "the  President  of  the  United 
States  started  up  in  a  violent  fret.  '  This  defeats  every 
purpose  of  my  coming  here,'  were  the  first  words  that 
he  said.  He  then  went  on  that  he  had  brought  his 
Secretary  of  War  with  him  to  give  every  necessary  in- 
formation ;  that  the  Secretary  of  War  knew  all  about 
the  business,  and  yet  he  was  delayed  and  could  not 
go  on  with  the  matter.  However,  he  said  he  did  not 
object  to  postponement  until  a  later  day."  Maclay 
continues  :  "We  waited  for  him  to  withdraw.  He  did 
so  with  a  discontented  air.  Had  he  been  any  other 
man  than  the  man  whom  I  wish  to  regard  as  the  first 
character  in  the  world,  I  would  have  said,  with  sullen 
dignity.  On  the  day  appointed,  the  President  came 
again,  and  then  there  was  a  great  discussion  in  his 
presence,  and  a  tedious  discussion." 


My.  impression  is  that  Washington  succeeded  in 
securing  the  confirmation  of  the  treaties,  although 
Maclay  does  not  make  it  clear.  Another  account  of 
this,  from  a  different  source,  and  perhaps  untrust- 
worthy, says  that  Washington  was  heard  by  one  who 
was  near  to  utter  an  oath  to  Knox  as  he  left  the  Senate. 
I  am  not  in  favor  of  profanity  and  do  not  wish  to  up- 
hold it  even  in  so  eminent  a  person  as  the  Father  of  our 
Country,  but  ,1 had  such  a  similar  experience  in  attempt- 
ing to  secure  the  advice  and  consent  of  the  Senate  to 
my  General  Arbitration  Treaties,  which  another  Knox 
presented  to  them,  that  J  confess  to  having  a  warm 
fellow  feeling  for  President  Washington  in  this  unlovely 
expression,  if  he  uttered  it.  I  have  read  much  of 
George  Washington  and  have  always  had  the  pro- 
foundest  admiration  for  the  qualities  which  he  had  in 
such  a  high  degree,  of  poise,  courage,  self-restraint  and 
judgment,  which  without  the  brilliant  intellectual 
faculties  and  acquirements  of  his  contemporaries,  en- 
abled him  to  influence  and  control  them  all  by  inspiring 
in  them  a  profound  respect  for  his  sense  of  justice,  his 
disinterested  patriotism,  his  high  ideals,  his  personal 
force  and  courage  and  his  common  sense.  It  is  diffi- 
cult to  get  close  to  him  as  a  man,  however,  or  to  feel 
in  reading  of  him  that  personal  affection  that  is  con- 
stantly being  stimulated  in  reminiscences  of  Lincoln. 
Such  an  incident  as  this  I  have  related,  however,  of 
Washington  shows  the  human  side  of  him  as  a  man  of 
good  red  blood  and  makes  me,  because  of  my  personal 
experience,  come  closer  to  him  than  ever  before. 

Jefferson  had  no  pleasure  or  facility  in  public  speak- 
ing. When  he  came  into  the  office  of  President,  there- 


fore,  he  preferred  to  send  to  Congress  written  messages, 
and  his  practice  was  so  formidable  a  precedent  that 
this  has  been  the  custom  of  the  Presidents  down  to  the 
present  administration,  when  President  Wilson  has 
introduced  again  the  old  practice  of  a  personal  address 
to  both  Houses.  I  think  the  change  is  a  good  one. 
Oral  addresses  fix  the  attention  of  the  country  on 
Congress  more  than  written  communications,  and  by 
fixing  the  attention  of  the  country  on  Congress,  they 
fix  the  attention  of  Congress  on  the  recommendations 
of  the  President.  I  cannot  refrain  from  a  smile,  how- 
ever, when  I  think  of  the  Democratic  oratory  which 
was  lost  because  Mr.  Roosevelt  or  I  did  not  inaugurate 
such  a  change.  The  eloquent  sentences  that  would 
have  resounded  from  the  lips  of  Senator  Ollie  James  or 
Senator  John  Sharp  Williams,  those  faithful  followers 
of  Jefferson,  in  denunciation  of  the  introduction  of 
"such  a  royal  ceremony  in  a  speech  from  the  Throne," 
I  could  supply  with  little  effort  of  the  imagination. 
Surely  a  member  of  the  Jeffersonian  Party  has  some 
advantages  hi  the  Presidential  chair. 

It  is  the  constitutional  duty  of  the  President  to  issue 
commissions  to  all  officers  of  the  United  States.  This, 
I  think,  is  the  greatest  manual  duty  the  President  has 
to  perform.  When  you  consider  all  the  officers  in  the 
government  who  are  entitled  to  commissions,  and  in 
addition  to  this,  the  number  of  letters  in  the  President's 
correspondence,  you  can  understand  that  a  substantial 
part  of  each  business  day  is  occupied  with  signatures. 
Of  course  the  shorter  the  President's  name,  the  easier 
his  work.  As  I  was  able  to  sign  with  only  seven  letters, 
I  had  an  advantage  over  my  predecessor  and  my  sue- 


cessor.  In  Washington's  day,  and  later,  all  the  letters 
patent  for  land  and  inventions  had  to  be  signed  by  the 
President,  but  fortunately  for  his  more  recent  succes- 
sors, Congress  has  authorized  the  President  to  desig- 
nate some  one  else  to  perform  this  duty.  I  do  not 
suppose  Congress  could  relieve  him  of  the  burden  of 
signing  commissions,  in  view  of  the  mandatory  language 
of  the  Constitution. 

The  question  of  commissions  seems  a  simple  and 
formal  one,  and  yet  out  of  it  came  one  of  the  greatest 
cases  that  was  ever  decided  in  this  country,  a  case  that 
had  more  direct  bearing  on  the  organic  structure  of 
this  government  than  any  in  the  history  of  the  great 
cases  decided  by  the  Supreme  Court.  I  refer  to  the 
case  of  Marbury  vs.  Madison.  That  case  was  not  only 
of  capital  importance  from  a  governmental  standpoint, 
but  it  was  part  of  the  interesting  personal  and  political 
history  of  the  struggle  of  two  giants  among  our  states- 
men and  jurists.  Thomas  Jefferson  was  not  in  the 
convention  that  framed  the  Constitution.  He  was 
induced  to  refrain  from  open  opposition  to  its  ratifica- 
tion on  a  promise  that  a  bill  of  rights  would  be  added 
to  it  by  amendment.  In  his  view  of  government  he 
took  the  democratic  extreme.  He  was  profoundly  sus- 
picious of  the  monarchical  tendencies  of  the  Federalist 
group,  especially  of  Hamilton.  As  soon  as  the  Con- 
stitution was  adopted,  two  parties  formed  themselves, 
the  Republicans  and  the  Federalists,  with  Jefferson  at 
the  head  of  one  and  Hamilton  at  the  head  of  the  other. 
The  Federalist  Party  remained  in  power  under  Wash- 
ington and  Adams,  and  then  in  the  election  of  1801, 
Adams  was  defeated  by  Jefferson.  John  Marshall, 


who  had  been  a  young  man  during  the  Revolution  and 
a  private  soldier  in  the  Continental  Army,  had  taken 
part  in  the  ratification  of  the  Constitution  in  the  Vir- 
ginia Constitutional  Convention,  was  a  Federalist 
member  of  Congress  in  Adams'  administration,  and 
became  Adams'  last  Secretary  of  State.  After  Adams 
was  defeated  and  before  Jefferson  was  elected  and  took 
his  seat,  Adams  appointed  Marshall  to  be  Chief  Justice, 
and  he  was  confirmed  in  the  interval  by  a  Federalist 
majority  in  the  Senate.  When  the  Federalists  saw 
they  were  going  out  of  power,  they  took  advantage  of 
the  fact  that  they  controlled  the  Presidency  and  the 
Congress  in  the  interval  between  the  election  and  the 
succession  of  the  new  administration,  and  passed  a  law 
creating  a  new  Circuit  Court  which  was  to  be  an  inter- 
mediate court  between  the  District  Court  and  the 
Supreme  Court,  and  provision  was  made  for  the  ap- 
pointment of  sixteen  judges.  President  Adams  ap- 
pointed these  judges  and  most  of  them  were  Federalists. 
They  were  confirmed  upon  the  night  of  March  3d, 
preceding  the  4th  of  March  when  Jefferson  was  to  take 
his  oath.  They  were  known  as  the  Midnight  Judges. 
This  action  by  a  defeated  party  roused  the  indignation 
of  Jefferson  and  the  Republicans.  Madison,  whom 
Jefferson  designated  to  act  as  Secretary  of  State,  was 
very  prompt  and  insistent,  so  tradition  has  it,  in 
taking  over  from  Marshall,  who  continued  to  act  as 
Secretary  till  the  close  of  Adams'  term,  the  Depart- 
ment of  State.  It  is  said  that  Marshall  in  commenting 
on  Madison's  urgency  felicitated  himself  that  he  got 
away  from  the  office  with  his  own  hat.  The  Republi- 
can Party  was  determined  to  abolish  the  Midnight 


Judges,  and  they  promptly  passed  a  law  for  this  pur- 
pose. When  the  law  was  on  its  passage,  it  was  argued 
by  the  Federalists  that  it  was  unconstitutional  because 
United  States  Judges  must  hold  their  offices  for  life. 
Fearing  that  John  Marshall,  who  had  then  taken  his 
seat  as  Chief  Justice,  and  his  Federalist  colleagues  in 
the  Supreme  Court  might  reach  this  conclusion,  Con- 
gress postponed  the  time  for  the  meeting  of  the  Court 
for  more  than  a  year.  When  the  Court  met,  no  effort 
was  made  to  test  the  validity  of  the  repeal  of  the  Cir- 
cuit Court  Act,  but  a  cause  was  presented  involving 
an  issue  quite  as  personal  to  Jefferson  and  Madison. 
Adams  had  appointed  one  Marbury  to  be  Justice  of 
the  Peace  in  the  District  of  Columbia  for  five  years. 
The  Senate  confirmed  him.  Adams  signed  the  Com- 
mission and  sent  it  to  Marshall  as  Secretary  of  State, 
who  signed  it  and  attached  the  seal.  By  some  over- 
sight, it  was  not  delivered  to  the  appointee,  and  Adams 
and  Marshall  went  out  of  office.  Marbury  thereupon 
applied  to  Madison  for  it,  and  Madison  declined  to 
deliver  it.  Marbury  filed  a  petition  in  the  Supreme 
Court  of  the  United  States  for  a  mandamus  to 
compel  Madison  to  deliver  him  the  Commission.  An 
Act  of  Congress  authorized  a  proceeding  in  man- 
damus in  the  Supreme  Court,  but  the  restrictions 
upon  the  jurisdiction  of  the  Court  in  the  Constitu- 
tion forbade  it.  For  the  first  time  there  was  flatly 
presented  the  question  whether  the  Supreme  Court  was 
bound  to  take  an  act  of  Congress  duly  passed  by  that 
body  as  conclusively  valid,  or,  if  the  Court  found  the 
act  to  be  in  violation  of  the  Constitution,  it  could  hold 
the  law  invalid  and  proceed  as  if  the  law  had  never  been 


passed.    This  was  the  great  issue  in  the  case,  and  it  is 
this  which  constitutes  its  transcendent  importance. 

The  Chief  Justice,  speaking  for  the  Court,  held  that 
in  any  case  coming  before  it  in  which  the  rights  of  the 
parties  were  affected  by  what  purported  to  be  a  stat- 
ute of  Congress,  the  Court  could  not  avoid  deciding 
whether  it  was  the  law  or  not ;  that  when  there  was 
an  inevitable  inconsistency  between  the  statutory  law 
and  the  fundamental  law,  the  statutory  law  must  yield 
to  fundamental  law  and  be  held  void. 

The  Chief  Justice  in  his  opinion  sustained  this  con- 
clusion not  only  on  general  principles  controlling  the 
action  of  a  court  under  a  written  Constitution  limiting 
legislative  powers,  but  he  enforced  it  by  reference  to 
the  express  language  of  the  Constitution  itself  in  respect 
to  the  Court's  jurisdiction  and  the  supremacy  of  the 
Constitution.  This  decision  thus  made  the  Judicial 
branch  of  the  government  the  branch  which  could 
effectively  determine  the  limits  of  power  of  the  other 
two  branches.  It  became  a  precedent  for  similar 
action  by  courts  in  all  the  states,  and  for  more  than  one 
hundred  years  it  has  been  accepted  as  authoritative. 
Jefferson  denounced  it  as  usurpation  of  Judicial  power. 
Every  once  in  a  while  we  have  a  recurrence  of  this 
criticism.  Such  an  attack  figured  very  prominently 
in  the  general  onslaught  on  courts  that  was  made  by 
the  Progressive  Party  in  agitating  recall  of  judges  and 
recall  of  judicial  decisions. 

The  conclusion  as  to  the  invalidity  of  the  law 
under  which  the  petition  for  mandamus  in  Marbury 
vs.  Madison  was  filed  disposed  of  the  case.  The  Chief 
Justice,  however,  was  not  content  to  allow  the  case 


to  go  off  in  this  way.  Before  deciding  the  question  of 
jurisdiction,  he  seized  the  opportunity  to  pass  upon 
the  merits  of  the  issue  by  deciding  that  if  the  Court 
had  jurisdiction,  it  must  issue  the  writ  and  compel  Mr. 
Madison  to  deliver  the  Commission.  He  said  that  this 
was  a  duty  of  the  Secretary  which  did  not  involve  any 
discretion  after  the  appointment  had  been  made  and 
the  Commission  had  been  signed  and  sent  him  for 
delivery.  Such  an  expression  of  opinion  was  what  the 
lawyers  call  obiter  dictum.  It  was  not  necessary  to 
the  decision  of  the  case  before  the  Court.  It  was 
prompted  by  the  political  feelings  of  the  Chief  Justice 
and  his  colleagues  and  a  willingness  to  criticize  Madison 
and  Jefferson.  Here  was  the  beginning  of  that  long 
duel  between  Marshall  and  Jefferson.  Marshall  stood 
for  the  broad,  liberal  Federalistic  construction  of  the 
Constitution,  treating  it  as  the  expression  of  the  whole 
people  of  the  United  States  in  founding  a  nation,  while 
Jefferson  insisted  that  it  was  nothing  but  a  league  of 
the  independent  states  granting  limited  and  delegated 
powers  to  a  weak  central  government.  Jefferson's 
term  of  office  continued  for  eight  years.  He  was  fol- 
lowed by  Madison  and  then  by  Monroe,  over  both  of 
whom  he  seems  to  have  exercised  influence.  Meantime 
Marshall  continued  on  the  Supreme  Bench  and  lived  ten 
years  after  Jefferson.  Jefferson  was  the  father,  and  until 
he  died  in  1825,  the  real  head,  of  a  great  party  which,  with 
but  a  few  short  intervals,  continued  in  power  until  the 
Civil  War.  Yet  Marshall,  a  Federalist,  in  his  service 
of  more  than  a  third  of  a  century  at  the  head  of  the 
Court,  was  able  to  breathe  into  the  Constitution  the 
spirit  of  nationality  and  of  Federal  supremacy  so 


effectively  that  a  court  of  Democrats  succeeding  him 
did  not  destroy  his  work.  Marshall's  construction  of 
the  Constitution  is  the  fundamental  law  to-day,  ac- 
quiesced in  by  all. 

Both  Marshall  and  Jefferson  were  great  men.  Mar- 
shall was  probably  the  greatest  judge  that  ever  lived, 
when  one  considers  the  wonderful  cogency  and  beauty 
of  his  judicial  style,  his  statesman's  foresight,  the 
accuracy  of  his  legal  learning,  the  power  of  his 
reasoning,  his  soundness  of  judgment,  his  wonderful 
personal  influence  over  his  colleagues  and  the  fate- 
ful influence  of  his  work  upon  the  structure  of 
our  great  government.  Jefferson  had  profound  confi- 
dence in  the  people,  and  was  the  embodiment  of  the 
democratic  principle.  He  was  a  genius  in  many  ways. 
He  was  a  voluminous  and  enormously  industrious 
correspondent.  He  was  a  student  of  government  and 
a  statesman,  a  lawyer,  an  architect,  a  politician,  a  man 
of  widest  interests  and  information,  the  champion  of 
all  freedom  and  especially  of  religious  tolerance,  the 
founder  of  the  University  of  Virginia,  and  a  great  pro- 
moter of  education  in  that  early  day. 

Though  unnecessary  to  the  decision,  the  principle  of 
law  laid  down  by  Marshall  in  Marbury  vs.  Madison  as 
to  the  right  of  a  court  to  command  the  head  of  a  de- 
partment to  do  a  ministerial  duty,  involving  the  exer- 
cise of  no  discretion,  has  been  followed  by  the  Supreme 
Court  in  several  cases.  In  one  case  Congress  directed 
that  the  Postmaster  General  credit  certain  contractors 
with  the  government  with  amounts  to  be  ascertained 
by  accounting  officers.  The  Postmaster  General  re- 
fused to  do  this,  and  the  Supreme  Court  held  that  a 


mandamus  would  lie  to  compel  him  to  do  it.  In  an- 
other case,  the  case  of  Decatur  vs.  Paulding,  Congress 
had  provided  a  pension  for  men  and  officers  in  the 
navy,  to  be  granted  by  the  Secretary  of  the  Navy. 
Decatur's  widow  claimed  that  she  was  entitled  to 
the  pension  under  the  law,  and  asked  the  Court  to  rule 
that  she  was  thus  entitled  and  to  direct  the  Secretary 
of  the  Navy  to  allow  her  the  pension.  The  Court 
held  that  in  this  case  under  the  law  Congress  intended 
to  entrust  the  granting  of  the  pension  to  the  official 
judgment  of  the  Secretary  of  the  Navy  and  that  the 
Court  would  not  control  such  Executive  discretion. 
The  distinction  is  to  be  found  in  the  purpose  of  Con- 
gress. If  that  which  remains  to  be  done  by  the  Execu- 
tive officer  does  not  involve  and  was  not  intended  by 
Congress  to  involve  discretion  in  doing  it  on  the  part  of 
the  Executive,  then  the  courts  can  compel  the  Executive 
to  do  the  act,  but  if  any  discretion  is  entrusted  to  the 
Executive,  then  the  court  is  powerless.  In  the  recon- 
struction period,  after  the  Civil  War,  when  Congress 
passed  an  act  enabling  the  President  to  institute  a  mili- 
tary government  in  each  of  the  conquered  seceding 
states,  suits  were  brought  to  enjoin  the  President  from 
carrying  out  the  law,  on  the  ground  that  the  law  was  in- 
valid. The  Court  refused  to  enjoin  the  President,  on 
the  ground  that  even  if  the  law  was  unconstitutional,  the 
function  of  the  President  under  the  law  was  a  political 
one  with  which  the  Court  could  not  interfere,  and  this 
view  was  further  enforced  by  the  admitted  impotency 
of  the  Court  to  restrain  the  President  from  carrying 
out  the  law  if  he  believed  it  to  be  constitutional.  This 
field  of  Judicial  control  over  Executive  action  and  the 


line  between  it  and  that  in  which  there  is  no  such  con- 
trol, offers  an  opportunity  for  the  study  of  nice  distinc- 
tions which  I  shall  not,  for  lack  of  space,  further  pursue. 

The  President  has  power  to  convene  Congress  in 
extraordinary  session,  and  to  adjourn  Congress  when 
the  Houses  disagree  as  to  adjournment,  to  such  time 
as  he  may  think  proper. 

When  I  convened  Congress  in  extraordinary  session 
to  pass  the  Reciprocity  bill,  the  leaders  of  the  Demo- 
cratic majority  in  the  House  were  fearful  that  the 
Senate  might  attempt  to  adjourn  after  the  bill  was 
passed,  and  that  the  House  might  not  have  the  oppor- 
tunity of  enacting  some  tariff  bills  for  political  use  in 
the  next  election.  The  Democratic  leaders  therefore 
came  to  me  to  know  whether  I  intended  to  exercise 
the  power  of  adjourning  the  House  in  case  of  a  dis- 
agreement. It  had  been  reported  that  that  was  my 
plan.  I  had  never  thought  of  it  and  was  able  to 
assure  them  of  this. 

In  a  recent  controversy  between  the  Houses  as  to 
adjournment,  an  appeal  was  made  to  President  Wilson 
to  adjourn  them.  This  power  of  prorogation,  I  was 
inclined  to  think  when  I  was  in  the  White  House,  was 
limited  to  the  adjournment  of  an  extra  session  of  Con- 
gress, but  I  did  not  give  the  question  full  consideration. 
As  I  read  it  now,  I  think  that  the  power  of  adjourn- 
ment where  the  Houses  differ  over  the  question  of 
adjournment  can  be  exercised  by  the  President  at  any 
session  of  Congress.  No  President  has  ever  attempted 
to  use  this  power. 

The  constitutional  functions  of  the  President  seem 
very  broad,  and  they  are.  When  many  speak  of  his 


great  power,  they  have  in  mind  that  what  the  Presi- 
dent does,  goes,  like  kissing,  by  favor.  I  beg  of  you 
to  believe  that  the  Presidency  offers  but  few  oppor- 
tunities for  showing  power  of  this  sort.  The  respon- 
sibility of  the  office  is  so  heavy,  the  earnest  desire  that 
every  man  who  fills  the  place  has  to  deserve  the  approval 
of  his  countrymen  by  doing  the  thing  that  is  best  for 
the  country  is  so  strong,  and  the  fear  of  just  popular 
criticism  is  so  controlling,  that  it  is  difficult  for 
one  who  has  borne  the  burden  of  the  office  for  four 
years  to  remember  more  than  a  few  favors  that  he 
was  able  to  confer.  There  are  certain  political  obli- 
gations that  the  custom  of  a  party  requires  the 
President  to  discharge  on  the  recommendation  of 
Senators  and  Congressmen.  I  hope  to  point  out 
in  the  next  chapter  how  that  kind  of  obligation 
should  be  reduced  to  a  minimum  by  a  change  of  law. 
I  refer  now,  however,  to  a  different  kind  of  power  with 
which  popular  imagination  clothes  the  President,  that 
of  gratifying  one  man,  humiliating  another,  or  punish- 
ing a  third,  in  order  to  satisfy  the  pleasure,  the  whim 
or  vengeance  of  a  ruler.  That  does  not  exist.  The 
truth  is  that  great  as  his  powers  are,  when  a  President 
comes  to  exercise  them,  he  is  much  more  concerned 
with  the  limitations  upon  them  than  he  is  affected, 
like  little  Jack  Horner,  by  a  personal  joy  over  the  big 
personal  things  he  can  do. 

The  President  is  given  the  White  House  to  live  in, 
— a  very  comfortable,  homelike  house.  In  all  the  world, 
I  venture  to  say,  there  is  no  more  appropriate  official 
residence  for  a  chief  executive,  or  one  better  adapted 
to  the  simple  democratic  taste  of  the  American  people, 


than  the  White  House.  It  is  dignified,  it  is  beautiful, 
it  is  commodious.  It  offers  an  opportunity  for  proper 
entertainment  of  the  President's  guests.  It  is  much 
less  extensive  and  much  less  ornate  than  the  royal 
palaces  of  Europe,  yet  it  is  quite  ample  to  surround 
the  occupant  with  that  dignified  freedom  from  intru- 
sion which  the  President  ought  to  have. 

There  is  an  impression  that  the  President  cannot 
leave  the  country  and  that  the  law  forbids.  This  is 
not  true.  The  only  law  which  bears  on  the  subject  at 
all  is  the  constitutional  provision  that  the  Vice-Presi- 
dent  shall  take  his  place  when  the  President  is  disabled 
from  performing  his  duties.  Now  if  he  is  out  of  the 
country  at  a  point  where  he  cannot  discharge  the 
necessary  functions  that  are  imposed  upon  him,  such 
disability  may  arise,  but  the  communication  by  tele- 
graph, wireless  and  by  telephone  are  now  so  good  that 
it  would  be  difficult  for  a  President  to  go  anywhere  out 
of  the  country  and  not  be  able  to  keep  his  subordinates 
in  constant  information  as  to  his  whereabouts  and  his 
wishes.  As  a  custom,  Presidents  do  not  leave  the 
country.  Occasionally  it  seems  in  the  public  interest 
that  he  should.  President  Roosevelt  visited  the  Canal 
Zone  for  the  purpose  of  seeing  what  work  was  being 
done  there  and  giving  zest  to  it  by  personal  contact 
with  those  who  were  engaged  in  it.  I  did  the  same 
thing  later  on,  traveling,  as  he  did,  on  the  deck  of  a 
government  vessel,  which  is  technically  the  soil  of 
the  United  States,  from  Hampton  Roads  to  the  Canal 
Zone  under  the  dominion  of  the  United  States. 
We  were  not  out  of  the  jurisdiction  except  for 
a  few  hours.  He  went  into  the  City  of  Panama,  as  I 


did,  and  dined  with  the  President  of  the  Panamanian 
Republic.  So,  too,  I  dined  with  President  Diaz  at 
Juarez  in  Mexico,  just  across  the  border  from  El  Paso. 
Nobody  was  heard  to  say  that  in  any  of  these 
visits  we  had  disabled  ourselves  from  performing  our 
constitutional  and  statutory  functions. 

The  assassination  of  three  Presidents  led  Congress 
to  provide  that  the  Chief  of  the  Secret  Service  should 
furnish  protection  to  the  President  as  he  moves  about 
either  in  Washington  or  in  the  country  at  large.  While 
President,  I  never  was  conscious  of  any  personal 
anxiety  in  large  crowds,  and  I  have  been  in  many  of 
them.  Yet  the  record  is  such  that  Congress  would 
be  quite  derelict  if  it  disregarded  it.  These  guards  are 
a  great  burden  to  the  President.  He  never  can  go 
anywhere  that  he  does  not  have  to  inflict  upon  those 
whom  he  wishes  to  visit  the  burden  of  their  presence. 
It  is  a  little  difficult  for  him  to  avoid  the  feeling  after 
a  while  that  he  is  under  surveillance  rather  than  under 
protection.  The  Secret  Service  men  are  level-headed, 
experienced  and  of  good  manners,  and  they  are  wise 
in  their  methods.  If  a  person  is  determined  to  kill  a 
President  and  is  willing  to  give  up  his  life  to  do  it,  no 
such  protection  will  save  him.  But  desperate  persons 
of  this  kind  are  very  rare.  The  worst  danger  is  from 
those  who  have  lost  part  or  all  of  their  reason  and 
whom  the  presence  of  the  President  in  the  immediate 
neighborhood  excites.  I  may  be  mistaken,  but  it 
seems  to  me  that  with  such  experts  as  we  now  have, 
the  assassination  of  President  McKinley  in  Buffalo 
might  possibly  have  been  avoided.  Under  the  prac- 
tice that  the  secret  service  men  now  pursue  in  a  public 


reception,  a  man  with  a  hand  in  his  pocket  would  not 
be  permitted  to  approach  within  striking  or  shooting 
distance  of  the  President.  His  holding  a  revolver 
under  his  handkerchief  in  his  pocket  would  now  be 
detected  long  before  he  could  get  within  reach  of  the 
object  of  his  perverted  purpose.  He  would  find  the 
hand  of  the  Secret  Service  man  thrust  into  the  pocket 
to  find  what  his  own  was  doing  there.  Had  this  been 
done  in  the  case  of  the  assassin  at  Buffalo,  that 
tragedy  would  probably  not  have  occurred. 

The  President  so  fully  represents  his  party,  which 
secures  political  power  by  its  promises  to  the  people, 
and  the  whole  government  is  so  identified  in  the  minds 
of  the  people  with  his  personality  that  they  are  in- 
clined to  make  him  responsible  for  all  the  sins  of  omis- 
sion and  of  commission  of  society  at  large.  This 
would  be  ludicrous  if  it  did  not  have  sometimes  serious 
results.  The  President  cannot  make  clouds  to  rain 
and  cannot  make  the  corn  to  grow,  he  cannot  make 
business  good ;  although  when  these  things  occur,  politi- 
cal parties  do  claim  some  credit  for  the  good  things  that 
have  happened  in  this  way.  He  has  no  power  over 
state  legislation,  which  covers  a  very  wide  field  and 
which  comes  in  many  respects  much  closer  to  the  hap- 
piness of  the  people  than  the  Federal  government. 

Some  urge,  because  the  states  have  not  shown 
themselves  as  active  as  they  ought  to  be  in  suppress- 
ing evils  and  accomplishing  good,  that  the  United 
States  government  should  thereby  acquire  additional 
authority,  and  the  President  and  Congress  should 
assume  new  functions.  This  would  break  up  our  whole 
Federal  System.  The  importance  of  that  system  is 


frequently  misunderstood.  Its  essence  is  in  the  giving 
through  the  states  local  control  to  the  people  over 
local  affairs  and  confining  national  and  general  sub- 
jects to  the  direction  of  the  central  government.  Our 
experience  with  the  administration  of  the  public  lands, 
with  the  control  of  our  national  mineral  wealth,  with 
the  irrigation  system  of  arid  lands  which  we  have 
undertaken,  and  with  the  disposition  of  the  many 
sources  of  water  power  owned  by  the  United  States, 
all  show  that  it  is  exceedingly  difficult  for  the  central 
government  to  administer  what  in  their  nature  are  local 
matters  and  put  in  force  a  uniform  national  policy  as 
to  these  subjects  that  may  often  be  at  variance  with 
the  local  view.  A  centralized  system  of  government, 
in  which  the  President  and  Congress  regulated  the  door- 
steps of  the  people  of  this  country,  would  break  up 
the  Union  in  a  short  time.  Those  who  lightly  call 
for  this  extension  really  do  not  understand  the  danger- 
ous proposition  they  are  urging. 

While  the  President's  powers  are  broad,  the  lines  of 
his  jurisdiction  are  as  fixed  as  a  written  constitution 
can  properly  make  them.  He  has  tremendous  respon- 
sibilities. Every  President  does  the  best  he  can,  and 
while  we  may  differ  with  him  in  judgment,  while  we 
may  think  he  does  not  bring  the  greatest  foresight  to 
his  task,  while  we  may  think  that  he  selects  poor  in- 
struments for  his  assistants  and  therefore  we  may 
properly  vote  against  his  reelection  to  the  office,  we 
must  remember  that  while  he  is  in  office,  he  is  the  head 
of  our  government.  We  should  indulge  in  his  favor 
the  presumption  that  he  acts  under  a  high  sense  of 
duty.  Correct  ideals  and  disciplined  intelligence  should 


impose  a  special  responsibility  on  men  and  women 
as  law-abiding  American  citizens  to  be  respectful  to 
constituted  authority  and  to  the  President,  because  it 
was  the  American  people  who  chose  him,  and  for  the 
time  being  he  is  the  personal  embodiment  and  repre- 
sentative of  their  dignity  and  majesty. 


ONE  of  the  functions  which  in  a  practical  way  gives  the 
President  more  personal  influence  than  any  other  is 
that  of  appointments.  The  prestige  that  a  President 
has  in  the  outset  of  his  administration  is  in  part  due 
to  this  power.  Even  in  the  case  of  the  most  popular 
President,  his  prestige  wanes  with  Congress  as  the  term 
wears  on  and  the  offices  are  distributed.  Mr.  Evarts, 
in  referring  to  filling  consular  places,  said,  "  Some  we 
appointed  and  more  we  disappointed."  "'Tis  true,  'tis 
pity,  and  pity  'tis,  'tis  true." 

Under  the  Constitution,  Ambassadors,  Public  Minis- 
ters, Consuls,  Judges  of  the  Supreme  Court  and  other 
officers  of  the  United  States,  whose  appointment  is  not 
otherwise  provided  for,  are  to  be  appointed  by  the 
President,  with  the  advice  and  consent  of  the  Senate. 
Congress  is  permitted  to  vest  the  appointment  of  in- 
ferior officers  in  the  President  alone,  in  the  courts  of 
law  or  in  the  heads  of  departments.  Heads  of  de- 
partments could  hardly  be  called  inferior  officers  — 
at  least  they  would  object  to  such  an  interpretation  — 
though  Senators  and  Congressmen  sometimes  call 
them  so.  The  language  of  the  Constitution  thus 
leaves  it  doubtful  whether  Congress  could  give  the 
selection  of  his  Cabinet  to  the  President  without  con- 
firmation by  the  Senate.  The  question  will  not  trouble 



us,  however,  for  the  Senate  is  never  likely  to  consent 
to  waive  the  right  it  now  has,  to  pass  upon  the  Presi- 
dent's choice  of  his  official  family. 

As  a  matter  of  fact,  all  the  important  offices,  and  a 
great  many  offices  that  are  not  important,  in  addition 
to  the  ones  especially  mentioned  in  the  Constitution, 
are  filled  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate.  The  President  alone  is 
authorized  by  Congress  to  appoint  comparatively  few 
officers.  There  are  minor  officers  in  great  number, 
notably  the  fourth-class  postmasters,  that  are  appointed 
by  the  head  of  a  department.  The  Clerks  of  the  courts 
and  the  United  States  Commissioners  are  appointed  by 
the  judges  of  the  respective  courts. 

It  was  settled,  as  long  ago  as  the  first  Congress,  at 
the  instance  of  Madison,  then  in  the  Senate,  and  by  the 
deciding  vote  of  John  Adams,  then  Vice-President, 
that  even  where  the  advice  and  consent  of  the  Senate 
was  necessary  to  the  appointment  of  an  officer,  the 
President  had  the  absolute  power  to  remove  him  with- 
out consulting  the  Senate.  This  was  on  the  principle 
that  the  power  of  removal  was  incident  to  the  Executive 
power  and  must  be  untrammeled.  In  the  administra- 
tion of  Andrew  Johnson,  the  Republican  Congress 
regarded  the  President  as  an  apostate  and  a  traitor 
to  Republican  principles.  With  a  two-thirds  majority 
in  each  House,  it  sought  to  reverse  this  principle  as  to 
the  power  of  removal  by  the  tenure  of  office  act.  Its 
first  section  continued  a  person  in  an  office  in  which  he 
had  been  confirmed  by  the  Senate,  until  the  appoint- 
ment and  qualification  of  his  successor.  This  of  course 
made  his  removal  dependent  upon  the  advice  and  con- 


sent  of  the  Senate  to  the  appointment  of  a  successor, 
and  put  the  question  of  removal,  therefore,  completely 
within  the  control  of  the  Senate.  The  act  further  es- 
pecially provided  that  the  head  of  a  department  should 
hold  his  office  during  the  term  of  the  President  who 
appointed  him,  and  should  be  subject  to  removal  only 
by  consent  of  the  Senate.  This  grew  out  of  Mr.  John- 
son's removal  of  Mr.  Stanton  from  the  War  Office. 
When  President  Grant  came  into  office,  much  of  the 
act  was  repealed  at  his  instance.  It  never  came  before 
the  courts  directly  in  such  a  way  as  to  invite  a  decision 
on  its  validity,  but  there  are  intimations  in  the  opinions 
of  the  Supreme  Court  that  in  the  tenure  of  office  act 
Congress  exceeded  its  legislative  discretion. 

As  we  look  back  upon  the  history  of  Johnson's  ad- 
ministration, and  can  remember  the  extreme  and 
passionate  feeling  entertained  by  good,  moral,  patriotic 
men  toward  Mr.  Johnson,  and  the  measures  to  which 
they  were  willing  to  resort  in  order  to  deprive  him  of 
his  official  power,  and  indeed  of  his  office,  we  have  a 
most  significant  illustration  of  the  wisdom  of  limita- 
tions in  a  written  Constitution,  imposed  by  a  highly 
intelligent  people  in  their  calm  and  deliberative  mo- 
ments upon  action  which  may  be  taken  by  themselves 
under  the  influence  of  passion  and  prejudice.  Now 
that  the  period  has  become  history,  and  a  half  century 
passed,  we  realize  that  it  would  have  been  a  blot  upon 
the  fairness  of  the  American  people  to  have  removed 
Mr.  Johnson,  with  all  his  temperamental  defects,  on 
the  grounds  charged  in  the  impeachment  articles,  and 
we  rejoice  that  there  were  dissentient  Republicans 
enough  to  prevent  the  majority  of  votes  in  favor  of  the 


impeachment  from  reaching  the  necessary  two-thirds. 
It  was  a  great  deal  better  to  put  up  with  the  gross  mis- 
takes involved  in  Mr.  Johnson's  policies  from  a  Republi- 
can point  of  view,  than  it  was  by  a  strained  and  unfair 
construction  of  the  Constitution  and  of  the  evidence 
advanced,  to  remove  him  from  his  office  on  the  ground 
that  he  had  committed  high  crimes  and  misdemeanors 
in  its  administration.  It  is  useful  to  dwell  on  this  one 
of  many  notable  instances  in  the  history  of  every  popular 
government,  to  refute  the  proposition  upon  which  the 
recall  of  judges,  the  recall  of  judicial  decisions,  the 
attack  upon  written  Constitutions  and  upon  the  sys- 
tem of  their  judicial  interpretation  and  enforcement  is 
based.  That  proposition  is  that  because  the  people 
have  and  ought  to  have  the  power  to  adopt  the  written 
Constitution  and  to  amend  it,  therefore  they  are  fitted 
to  interpret  and  apply  the  Constitution,  and  in  effect 
amend  it,  in  a  particular  case  between  particular  indi- 
viduals. This  is  an  egregious  fallacy.  The  best  and 
most  intelligent  men,  well  able  wisely  to  frame  and 
adopt  a  written  Constitution  laying  down  general  limi- 
tations, in  accordance  with  general  principle,  neverthe- 
less may,  and  often  do,  lose  their  fairness  and  clearness 
of  vision  over  a  special  case  between  special  individuals 
arousing  personal  or  party  passion. 

According  to  the  last  report  of  the  United  States 
Civil  Service  Commission,  the  number  of  officers  and 
employees  in  the  executive  civil  service,  on  the  30th 
of  June,  1913,  was  469,879.  With  the  increase  in  the 
offices  which  occurred  in  the  last  Congress,  and  with 
the  actual  increase  that  follows  the  growth  of  the  pop- 
ulation, it  will  soon  be  half  a  million.  By  the  activi- 


ties  of  these  civil  servants,  the  Federal  government 
maintains  its  personal  presence,  so  to  speak,  in  every 
local  community  throughout  the  vast  stretch  of  national 
jurisdiction.  In  the  days  before  the  present  civil  ser- 
vice law,  a  sense  of  obligation  to  the  President  for  the 
places  held,  made  practically  all  the  civil  employees 
his  political  henchmen.  In  those  halcyon  times,  even 
the  humblest  charwoman  or  the  most  poorly  paid 
janitor  felt  a  throb  of  deep  personal  interest  in  the 
political  health  of  the  President. 

Machine  politics  and  the  spoils  system  are  as  much 
an  enemy  of  a  proper  and  efficient  government  system 
of  civil  service  as  the  boll  weevil  is  of  the  cotton  crop, 
or  the  various  forms  of  insects  and  blight  are  of  the 
farmer  and  the  horticulturist  in  then*  pursuits.  The 
strength  of  these  pernicious  influences  has  not  been 
entirely  destroyed  by  the  present  Federal  civil  service 
law.  I  think,  however,  their  evil  has  been  more  miti- 
gated in  the  Federal  civil  service  system  than  in  the 
states  where  there  is  a  merit  system.  In  the  rush  of 
reform  in  the  last  decade,  I  believe  nine  of  the  states 
have  adopted  the  competitive  civil  service  system  and  a 
requirement  for  its  adoption  has  been  incorporated  in 
the  charters  of  250  cities.  The  Federal  system,  is  older 
and  much  better  enforced.  The  difficulty,  however,  that 
we  encounter  is  the  same  as  in  the  carrying  out  of  many 
reforms.  The  securing  of  the  necessary  legislation 
proves  to  be  only  a  necessary  initial  step,  but  perhaps 
not  the  most  important  and  difficult  one.  The  law  will 
not  enforce  itself.  It  has  accomplished  one  purpose  in 
enabling  those  who  voted  for  it  in  the  legislature  to  claim 
credit  for  it  on  the  stump.  But  such  a  law  cannot  be 


drawn,  which  will  be  practical,  and  at  the  same  time  will 
not  permit  evasion  of  its  purpose  by  a  politician  in  the 
executive  chair  who  devotes  his  time  to  it.  We  often 
therefore  find  the  law  more  honored  in  the  breach 
than  in  the  observance.  The  life  of  a  civil  service 
system  on  the  merit  principle  is  in  its  executive  en- 
forcement, and  that  only  comes  with  a  gradual  im- 
provement in  the  public  scrutiny  and  the  official  con- 
science in  respect  to  the  law.  If  a  party  remains 
in  power  for  a  number  of  successive  terms,  the 
merit  system  acquires  a  stronger  hold  than  where 
frequent  changes  from  one  party  to  another  in  the  execu- 
tive administration  tempt  the  seizure  of  patronage  for 
party  purposes  by  hook  or  crook.  Still  we  should  not 
be  disheartened.  Defective  as  the  Federal  system  law 
has  proved  to  be  in  certain  ways,  the  principle  has 
made  great  headway  since  it  was  adopted  in  1883. 
The  positions  then  affected  by  it  numbered  about 
14,000.  On  June  30th,  1913,  the  positions  affected 
were  more  than  282,000,  and  of  these  172,000  were 
brought  under  the  law  by  executive  orders  extending  the 
system,  while  110,000  were  included  by  the  natural  ex- 
pansion of  the  service  after  the  orders  had  become 
effective.  About  190,000  positions  under  the  govern- 
ment are  not  subject  to  competitive  examination.  Of 
these  10,000  are  Presidential  appointees.  The  re- 
mainder are  laborers  or  contracting  employees  whose 
exclusion  from  the  classified  service  is  doubtless  justi- 
fied by  the  conditions.  It  is  with  respect  to  the  10,000 
Presidential  employees  that  a  real  improvement  can  be 
brought  about.  They  are  most  of  them  local  Federal 
officers  distributed  throughout  the  United  States,  first, 


second  and  'third  class  postmasters,  collectors  of  cus- 
toms, collectors  of  internal  revenue  and  public  land 
officers.  They  must  be  confirmed  by  the  Senate.  Where 
an  appointment  is  subject  to  confirmation  by  the  Senate, 
it  cannot  by  executive  order  be  put  in  the  classified 
civil  service.  Congress  might,  however,  repeal  the  ne- 
cessity for  confirmation  and  give  the  appointments  to  the 
President  alone.  He  then  could  classify  them  all  and 
incorporate  them  in  the  merit  system,  and  the  appoint- 
ments to  such  places  would  be  filled  by  promotions  from 
subordinate  positions  of  assistants.  Thus  all  the  local 
offices  throughout  the  country,  the  postmasters,  the 
collectors  of  internal  revenue,  the  collectors  of  customs, 
and  all  other  subordinates,  would  be  given  permanent 
tenure  and  appointed  and  promoted  after  examination 
and  upon  proved  efficiency.  The  retention  by  Congress 
of  the  necessity  for  confirmation  by  the  Senate  enables 
members  to  keep  these  local  offices  out  of  the  classified 
service,  and  to  make  them  the  football  of  politics.  In 
effect,  it  enables  them  to  administer  these  offices  as 
personal  patronage,  under  a  custom  which  is  established 
through  the  so-called  courtesy  of  the  Senate.  Under  it, 
the  partisan  majority  in  the  Senate  will  usually  decline 
to  confirm  an  appointment  made  by  the  President  to  a 
postmastership  or  a  collectorship,  which  is  not  recom- 
mended by  the  Senators  or  Congressmen  from  the  dis- 
trict in  which  the  appointee  lives  and  is  to  discharge 
his  duties.  There  is  a  clear  understanding  between 
Senators  and  Congressmen  as  to  how  this  patronage  is 
to  be  divided  between  them  in  each  state,  and  the 
President  attempting  to  break  up  the  custom  has  here- 
tofore found  himself  unable  to  do  so. 


There  have  been  notable  instances,  as  in  the  case  of 
President  Garfield  and  Senators  Conkling  and  Platt, 
where  the  President  asserted  his  right  to  act  without 
the  recommendation  of  the  New  York  Senators  in  a 
New  York  appointment.  Public  sympathy  ran  with 
the  President  in  this  controversy,  as  it  generally  does, 
but  tradition  and  the  advantage  of  cohesion  in  the 
Senate  make  it  difficult  to  overcome  the  custom. 
More  than  this,  in  the  Garfield-Conkling  controversy, 
it  was  not  a  question  of  civil  service  reform.  The 
issue  was  political.  It  was  only  a  question  whether  a 
Conkling  man  should  be  replaced  by  a  Blaine  man, 
and  it  was  a  question  whether  Mr.  Garfield  should  be 
permitted  to  pay  a  political  debt  of  Mr.  Blaine  by  the 
appointment  of  Mr.  Elaine's  friend,  Judge  Robertson, 
and  the  removal  of  a  friend  of  Senator  Conkling.  Nor 
did  Mr.  Garfield  seek  to  change  the  custom  except  in 
this  case.  In  one  of  his  state  papers  he  expressly  ad- 
vocated the  system  of  recommendations  for  such  ap- 
pointments by  Congressmen  and  Senators.  From  time 
to  tune  in  the  present  administration,  there  have  been 
threatened  issues  over  confirmations  between  the 
President  and  the  Senate,  growing  out  of  party  factional 
differences,  but  they  have  been  smoothed  over,  and  I 
think  it  will  be  found  generally  that  the  Senate  has 
maintained  the  custom  of  which  I  have  spoken.  An 
attempt  on  the  President's  part  to  break  up  the  custom 
would  create  a  factional  opposition  which  would  inter- 
fere with  the  passing  of  the  bills  he  recommends,  and 
endanger  the  successful  carrying  out  of  the  policies 
to  which  he  is  pledged. 

Any  discussion  of  the  subject  is  lacking  which  does 


not  make  some  reference  to  the  solemn  argument  of 
solemn  Senators  in  the  effort  to  enlarge  the  meaning 
of  the  words  "advice  and  consent  of  the  Senate",  used 
by  the  Constitution  in  describing  the  part  the  Senate 
should  play  in  the  matter  of  appointments.  The 
usual  contention  is  that  these  words  require  that 
the  President,  before  making  a  nomination,  consult 
the  Senate.  To  use  Skipper  Jack  Bunsby's  language, 
as  reported  in  Dombey  and  Son,  "The  bearings  of 
this  observation  is  in  the  application  on  it."  Such  a 
construction  of  the  term  "advice  and  consent"  easily 
leads  one  imbued  with  the  sacred  awfulness  of  the 
Senate's  function  in  the  government  to  the  conclusion 
that  a  Republican  President  under  the  Constitution 
and  the  courtesy  of  the  Senate  must  consult  the 
Republican  Senators  from  a  state  before  making  an 
appointment  in  that  state,  although  no  such  constitu- 
tional or  statutory  obligation  is  upon  him  in  respect  of 
Democratic  Senators.  The  Constitution  thus  varies 
in  its  application  to  the  power  of  Senators  of  one  politi- 
cal party  and  to  the  Senators  of  another.  This  is  not 
entirely  humorous,  much  as  it  may  seem  to  be.  A  Sen- 
ator asked  me  to  appoint  two  men, (one  to  be  District 
Attorney,  and  the  other  his  assistant,  and  requested  that 
they  be  allowed  to  divide  the  aggregate  salary  of  the  two 
offices  equally.  When  I  declined  to  do  so,  he  requested 
the  appointment  of  one  of  them  to  the  chief  office. 
Upon  investigation,  I  did  not  think  his  standing  at  the 
bar  was  such  as  to  justify  the  appointment,  and  was 
confirmed  in  this  opinion  by  his  willingness  to  accept  the 
office  under  the  arrangement  as  suggested.  I  nomi- 
nated another  lawyer  of  much  higher  capacity  and 


greater  fitness,  who  was  also  a  political  supporter  of  the 
Senator.  He  fought  the  nomination  on  the  ground 
that  with  devilish  ingenuity  I  had  sought  to  embarrass 
him.  While  he  admitted  the  competency  and  high 
character  of  my  nominee  and  his  proper  political  views, 
he  argued  that  as  his  advice  to  me  had  been  different, 
and  as  he  in  such  local  matters  represented  the  Senate, 
and  had  not  advised  and  consented  to  the  nomination, 
the  appointment  should  not  be  confirmed,  in  his  view 
of  the  constitutional  function  of  the  Senate  in  appoint- 
ments. I  should,  in  fairness,  say  that  the  Senate  did 
not  sanction  his  view. 

As  long  as  these  important  local  offices  remain  polit- 
ical, and  are  the  patronage  of  Senators  and  Congress- 
men, the  expense  of  the  administration  of  the  offices 
will  be  largely  more  than  it  need  be.  I  was  much  inter- 
ested during  my  term  of  office  in  devising  a  system  for 
the  permanent  promotion  of  efficiency  and  economy  in 
the  government  service.  I  induced  Congress  to  give 
me  $  100,000  a  year  for  two  years,  to  pay  the  expenses 
of  an  expert  Commission,  to  examine  the  governmental 
business  and  make  reports  upon  the  changes  needed 
by  the  introduction  of  modern  business  methods  and 
economy,  to  enable  the  people  to  get  more  for  their 
money.  The  reports  that  they  made,  by  which  they 
pointed  out  needed  changes  in  our  present  system,  in- 
cluding the  budget,  which  I  described  in  my  first 
chapter,  were  not  popular  with  Congress,  especially 
not  with  the  last  Congress  of  my  term.  The  necessary 
appropriation  was  withdrawn.  The  Commission,  how- 
ever, did  a  great  deal  of  most  useful  work,  and  while 
the  dust  is  accumulating  on  their  reports  at  present, 


their  investigations  and  conclusions  were  of  permanent 
value,  and  some  day  they  will  be  made  the  basis  for 
further  investigation  and  for  definite  measures  of  re- 
form. Among  other  conclusions  which  they  reached, 
and  which  makes  a  reference  to  their  work  relevant 
here,  was  that  the  requirement  for  confirmation  by  the 
Senate  of  these  local  Federal  offices,  numbering  about 
10,000,  should  be  repealed,  and  that  the  force  in  all  the 
offices  should  be  reclassified,  and  all,  including  the  chief 
officers,  should  be  put  in  the  classified  service.  They 
reported  that  if  this  was  done,  the  chief  offices  might  be 
abolished  and  the  work  be  done  by  the  present  assist- 
ants, whose  salaries  could  be  increased  20  per  cent.  In 
this  way  the  work  of  the  government  would  be  more 
effectively  done  by  the  assistants  who  are  usually  ex- 
perts, and  there  would  be  a  saving  of  $4,500,000  a  year. 
Not  only  would  the  government's  business  be  better 
done,  but  there  would  be  eliminated  opportunity  for 
the  use  of  Federal  appointments  to  influence  or  control 
political  nominations  and  elections,  an  abuse  which  has 
greatly  helped  the  maintenance  of  machine  politics 
and  the  success  of  professional  political  positions.  I  rec- 
ommended such  a  change  in  my  four  annual  messages, 
but  Congress  took  no  notice  of  the  suggestion.  Con- 
gressmen and  Senators  have  an  impression  that  to 
lose  this  patronage  would  very  seriously  interfere  with 
their  political  future  and  power.  I  do  not  mean  to  say 
that  some  Congressmen  and  some  Senators  do  not  make 
such  patronage  politically  useful  for  themselves,  but  I 
venture  to  think,  and  the  judgment  of  men  of  much 
greater  political  experience  and  observation  than  I 
have  had  will  sustain  me,  that  the  having,  and  use  of, 


such  patronage  more  often  injures  than  helps  the  user 
in  securing  his  renomination  and  reelection.  It  is  a 
saying  in  Washington,  justified  by  the  fact,  that  an 
appointment  of  a  first,  second,  third  or  fourth  class 
postmaster  not  infrequently  creates  for  the  Congress- 
man who  secures  it  one  ingrate  and  ten  enemies. 

Candor  compels  me  to  refer  to  some  dangers  in  our 
extension  of  the  classified  service  and  permanent  ten- 
ure of  employees.  Substantial  progress  toward  better 
things  can  rarely  be  taken  without  developing  new 
evils  requiring  new  remedies.  In  the  classified  sys- 
tem, there  are  large  bodies  of  mail  carriers,  postal  mail 
clerks,  and  of  other  subordinate  civil  servants,  who 
have  a  common  interest  in  an  increase  in  their  salary 
or  other  terms  of  their  employment.  They  form  asso- 
ciations or  in  effect  trades-unions.  They  perfect  their 
organizations.  They  publish  a  newspaper.  Their  gov- 
ernment duties  carry  them  into  close  contact  with  the 
people  and  voters  of  the  various  Congressional  districts, 
and  in  indirect  ways  they  seek  to  bring  undue  political 
pressure  upon  the  members  of  Congress  and  the  Senate 
to  accomplish  their  personal  desires.  They  are  often 
successful  in  this.  It  is  a  pernicious  use  of  the  oppor- 
tunities given  by  their  official  duties  to  secure  an  ad- 
vance of  their  pay  or  other  more  favorable  terms  of 
service,  on  other  grounds  than  the  merit  of  the  ques- 
tion. Executive  orders  have  been  issued  to  prevent 
such  activities,  but  the  demagogues  of  both  Houses 
and  both  parties  rush  forward  to  hamper  Executive 
authority  in  this  respect,  and  the  evil  thus  far  has 
continued.  It  has  been  used  as  an  argument  against 
the  classified  competitive  system.  It  seems  to  me  the 


proper  view  to  take  of  this  is  that  we  must  find  some 
means  to  prevent  such  an  abuse,  but  that  it  should 
not  be  a  reason  for  losing  the  great  advantage  of  the 
merit  system. 

I  cannot  exaggerate  the  waste  of  the  President's 
time  and  the  consumption  of  his  nervous  vitality  in- 
volved in  listening  to  Congressmen's  intercession  as  to 
local  appointments.  Why  should  the  President  have 
his  time  taken  up  in  a  discussion  over  the  question  who 
shall  be  postmistress  at  the  town  of  Devil's  Lake  in 
North  Dakota  ?  How  should  he  be  able  to  know,  with 
confidence,  who  is  best  fitted  to  fill  such  a  place  ?  If  we 
were  to  follow  ordinary  business  methods  in  a  matter 
which  concerns  business  only  and  does  not  concern  gen- 
eral political  policies,  as  we  ought  to  do,  would  we  not 
leave  such  appointments  to  the  natural  system  of  pro- 
motion for  efficiency  ?  If  the  persons  and  parties  con- 
tending for  the  abolition  of  bosses  and  the  suppression 
of  machines  would  show  the  faith  and  sincerity  that 
ought  to  be  in  them,  they  could  promote  the  cause  which 
they  so  loudly  proclaim,  most  effectively,  by  passing  the 
law  which  I  recommended  to  Congress.  Totes  upon  such 
a  measure  would  be  a  test  of  their  sincerity  in  this  matter. 
I  regret  to  say  that  up  to  this  time,  few  members  of  any 
party,  whether  Republican,  Democratic  or  Progressive, 
however  drastic  reformers,  have  stood  this  test.  Of 
course  there  were  machines  that  were  corrupt  and  there 
were  bosses  that  made  a  profession  of  politics  and  held 
themselves  out  as  political  attorneys  to  be  retained. 
There  are  not  so  many  now.  A  great  reform  in  this 
respect  has  been  effected.  But  parties  are  essential  to 
the  success  of  popular  government,  and  parties  mean 


organization.  It  is  not  without  humor  to  note  the 
effect  upon  the  enthusiastic  purist  and  reformer  in  poli- 
tics when  a  consciousness  of  this  steals  over  him,  and  he 
begins  to  look  with  tenderness  upon  the  use  of  patron- 
age to  help  the  organization  of  the  party  which  was 
founded  in  the  interest  of  pure  reform.  We  find  that 
often  the  difference  between  political  machines  and  a 
party  organization  for  reform  is  only  determined  by  the 
question,  "  Is  it  for  you  or  against  you  ?  "  If  it  is  for  you 
and  your  ideas,  it  is  a  justifiable  organization,  and  the 
more  effective  you  can  make  it,  the  better.  If  it  is 
against  you,  it  is  a  low  political  machine  and  ought  to 
be  condemned  out  of  the  mouths  of  all  decent  people. 
If  the  leader  of  the  organization  is  with  you,  he  is  a  polit- 
ical leader  with  a  statesmanlike  view.  If  he  is  against 
you,  he  is  a  boss,  and  the  typical  head  of  a  dangerous 
machine.  This  personal  element  and  this  distinction 
between  the  evil  use  of  patronage  and  the  good  use  of 
patronage  are  the  two  obstructions  to  a  betterment 
of  our  civil  service  system.  Everything  that  tends  to 
arbitrary  and  complete  power  in  any  officer  in  the  distri- 
bution of  offices,  whose  duties  do  not  affect  the  determi- 
nation of  political  policies,  is  demoralizing.  It  gives 
sanction  to  favoritism,  and  favoritism  develops  abuses 
even  where  its  exercise  is  entrusted  to  the  best  men. 

/The  law  put§_thfi^ppointment  of  clerks  of  courts Jn 
the  judges.  Judges  are  men  of  high  character,  great 
ability  and  wide  learning  generally,  but  when  they  are 
given  executive  or  quasi-political  functions,  that  is, 
when  they  exercise  patronage,  they  have  proven  to  be 
quite  like  other  men.  Clerks  appointed  in  the  Federal 
district  courts  become  part  of  the  family  of  the  judge. 


Their  appointments  are  practically  for  life.  They  feel 
secure.  They  are  close  to  the  judge.  Their  associa- 
tions are  intimate.  They  naturally  seek  to  increase 
the  earnings  of  their  offices,  especially  when  their 
salaries  are  more  or  less  dependent  on  the  amount 
of  their  official  earnings,  and  they  are  prone  to  over- 
charges. The  favor  they  enjoy  with  the  judge  as  part 
of  his  family  has,  I  am  sorry  to  say,  permitted  such 
abuses..  The  reluctance  that  some  judges  have  to  call 
their  clerks  to  strict  account  in  the  management  of 
their  offices  is  too  well  known  to  the  head  of  the  De- 
partment of  Justice,  and  to  his  inspectors,  whose  duty 
it  is  to  examine  their  accounts.  When  in  office,  I  rec- 
ommended that  the  President  have  the  power  of 
removal  of  such  clerks  for  cause,  upon  the  report  of  the 
Attorney-General,  but  no  such  action  was  taken,  al- 
though there  were  a  number  of  cases  presented  justify- 
ing such  a  change  in  the  law.  With  nearly  one  hundred 
clerks  of  courts,  and  with  a  larger  number  of  deputies 
spread  all  over  the  United  States,  the  influence  that  can 
be  used  with  members  of  Congress  in  a  matter  like  this, 
not  acutely  political,  only  those  who  have  had  occasion 
to  meet  it  can  fully  understand. 

In  order  to  protect  the  judges  against  their  unjudicial 
selves  in  extra  judicial  matters,  I  would  remove  all  pat- 
ronage from  the  courts.  The  patronage  of  the  Lord 
Chancellor  in  England  is  very  large  indeed,  and  it 
does  not  tend  to  the  higher  standing  of  that  great  judi- 
cial officer.  Lord  Westbury,  one  of  the  ablest  Chan- 
cellors England  ever  had,  was  compelled  to  resign  be- 
cause of  a  difficulty  growing  out  of  the  patronage  which 
he  had  exercised  in  behalf  of  a  member  of  his  family 


who  had  abused  his  office.  I  would  vest  the  appoint- 
ment of  receivers  in  equity  to  take  charge  of  railroads 
by  the  Federal  courts  in  the  Interstate  Commerce 
Commission.  They  could  be  made  of  course  quite  as 
subject  to  the  direction  of  the  court,  though  appointed 
by  another  authority,  as  if  appointed  by  the  court 
itself.  I  know  whereof  I  speak  as  to  the  wisdom  of  such 
a  change.  For  eight  years  I  acted  as  a  circuit  judge, 
and  during  much  of  that  time,  I  was  engaged  through 
receivers  in  operating  many  thousands  >of  railroads 
within  my  circuit.  The  executive  power  of  appoint- 
ment the  court  is  thus  called  upon  to  exercise  is  not 
good  for  the  court,  creates  antagonisms  that  ought 
to  be  avoided,  and  interferes  with  the  proper  dis- 
charge of  normal  judicial  functions.  The  vesting  in 
courts  of  the  appointment  of  supervisors  of  elec- 
tion under  the  Federal  election  laws  before  their 
repeal  was  greatly  detrimental  to  the  standing  of 
the  Federal  courts  and  necessarily  had  the  effect  to 
drag  them  into  partisan  controversy.  In  the  South, 
because  the  judges  were  generally  of  the  opposite 
political  complexion  from  that  of  the  great  body  of 
the  voters,  it  made  the  courts  for  the  time  being 
alien  courts.  Since  the  abolition  of  the  Federal  election 
laws  and  the  appointments  of  a  number  of  Democratic 
judges  in  the  South,  I  think  the  standing  of  the  Fed- 
eral courts  with  the  people  of  that  section  has  become 
changed  for  the  better. 

In  my  judgment,  the  President  should  not  be  required 
to  exercise  his  judgment  to  make  appointments  except 
to  fill  the  most  important  offices.  In  the  Executive 
department,  he  should  be  limited  to  the  selection  of 


those  officers,  the  discharge  of  whose  duties  involves 
discretion  in  the  carrying  out  of  the  political  and 
governmental  policy  of  his  administration.  He  there- 
fore ought  to  have  the  appointment  of  his  Cabinet 
officers,  and  he  ought  also  to  have  the  appointment  of 
a  political  under-secretary  in  each  department  to  take 
the  place  of  the  head  of  the  department  when  for  any 
reason  the  head  of  the  department  is  not  able  to  dis- 
charge his  usual  duties.  All  other  officers  in  the  de- 
partments, including  the  Assistant  Secretaries  and  the 
Chiefs  of  Bureaus,  should  have  a  permanent  tenure 
and  not  change  with  each  administration.  This  would 
greatly  facilitate  the  continuity  of  the  government  and 
prevent  the  halt  and  lack  of  efficiency  that  necessarily 
attend  a  change  hi  the  Assistant  Secretaries  in  each 
department  and  in  the  Chiefs  of  all  Bureaus.  For  a 
year  or  a  year  and  a  half,  at  least,  sometimes  for  a  longer 
period,  it  throws  the  administration  of  the  depart- 
ment into  the  complete  control  of  minor  subordinates, 
the  Chiefs  of  Divisions  and  Chief  Clerks,  and  makes 
the  inexperienced  heads  of  departments,  Assistant 
Secretaries  and  Chiefs  of  Bureaus  entirely  dependent 
on  such  subordinates. 

Consider  the  entirely  unnecessary  helplessness  of  our 
government  in  the  administration  of  our  foreign  rela- 
tions, in  which  there  is  a  greater  necessity  for  continuity 
of  policy  than  in  any  other  department,  when  men 
having  no  practical  knowledge  of  the  previous  foreign 
policy  of  the  government,  its  safe  traditions  or  of  diplo- 
matic custom,  are  substituted  for  competent  officials. 
When  such  changes  are  possible,  we  put  ourselves  at  a 
great  disadvantage  in  dealing  with  the  departments  of 


foreign  affairs  of  other  countries,  and  this  disadvantage 
is  accentuated  and  increased  when  competent  repre- 
sentatives abroad  in  our  diplomatic  service  are  removed 
and  men  of  no  experience  replace  them.  The  Presi- 
dent of  course  should  appoint  the  Supreme  Judges,  as 
the  Constitution  requires,  and  the  inferior  judges  of 
the  Federal  judiciary.  He  ought,  too,  to  appoint  the 
general  officers  of  the  army  and  the  flag  officers  of  the 
navy,  and  he  ought  also  to  appoint  the  leading  Ambas- 
sadors and  Ministers.  Other  appointments,  it  seems 
to  me,  might  well  be  left  to  a  system  of  promotion,  to  be 
carried  on  under  civil  service  rules  as  interpreted  and 
enforced  by  a  Commission  and  the  heads  of  depart- 
ments. In  this  way,  the  attention  of  the  President 
would  be  taken  up  in  matters  of  appointment  with 
those  offices  in  which  he  would  have  a  full  opportunity 
to  learn  of  the  qualifications  of  proper  candidates,  and  in 
the  appointment  of  which,  because  of  the  conspicuous 
importance  of  the  duties  to  be  discharged,  he  would  be 
held  to  a  proper  responsibility  by  a  much  more  dis- 
criminating public  scrutiny  than  can  possibly  be  exer- 
cised in  respect  to  the  less  important  and  subordinate 

I  have  spoken  of  the  drain  upon  the  nervous  vitality 
of  the  President  in  the  consideration  of  the  many  sub- 
ordinate offices  that  he  has  to  fill  and  the  constant  in- 
terviews that  he  is  bound  to  have  with  Congressmen 
and  with  Senators  over  such  appointments,  and  the 
disputes  and  friction  incident  to  the  decision  in  such 
cases.  One  cannot  go  through  the  strain  of  the 
Presidential  office,  especially  in  such  cases,  unless  he 
has  a  sense  of  humor.  That  takes  up  the  jolts,  and 


it  lightens  the  monotonous  and  annoying  routine  and 
gives  an  opportunity  for  a  study  of  the  play  of  motives 
in  human  nature.  No  one  has  as  good  opportunity 
to  know  Senators  and  Congressmen  as  the  President, 
because  in  asking  the  Presidential  favor,  the  Senator  or 
Congressman  frequently  bares  his  motives  and  dis- 
closes his  inmost  traits  of  character  in  the  confidence 
and  secrecy  of  the  Executive  office.  It  is  more  or  less 
an  unconscious  confessional.  It  enables  the  President 
to  measure  the  characters  of  men  in  public  life.  He 
finds  that  some  popular  idols  have  feet  of  clay,  and  that 
others  not  held  in  great  public  esteem  have  sturdier 
virtues  and  more  disinterested  anxiety  for  the  public 
weal  than  their  press-made  reputations  would  indicate. 
Sometimes  the  incidents  are  farcical  and  mirth- 
making.  I  remember  one  case  of  the  wife  of  a  politi- 
cian of  influence,  who  was  anxious  to  sscure  an  appoint- 
ment for  her  son.  She  procured  the  recommendation 
of  Congressmen  and  Senators  in  both  parties,  and  to  see 
that  they  said  what  she  wished  them  to  say,  she  accom- 
panied them  to  the  Executive  office.  When  the  appoint- 
ment, which  was  for  a  technical  place,  was  given  to 
another,  she  wrote  me  a  letter,  most  severe,  in  which 
she  arraigned  me  for  ingratitude  in  not  giving  her  per- 
manent happiness,  as  I  might,  by  the  turn  of  my  hand, 
when  she  had  secured  a  number  of  votes  for  a  bill  in 
the  passage  of  which  I  was  much  interested  as  an 
administration  measure.  I  wrote  to  her  in  as  gentle  a 
way  as  possible  to  break  the  blow  to  a  mother's  heart 
and  supposed  that  the  incident  was  closed  ;  but  an  acci- 
dental delay  in  the  confirmation  led  to  the  writing  of  a 
letter  in  the  name  of  her  husband,  but  in  her  handwrit- 


ing,  in  which  I  was  advised  that  she  was  seriously  ill 
in  bed  with  a  disease  usually  fatal  and  which  was  in- 
juriously affected  by  the  mental  worry  which  I  had 
given  her  by  a  failure  to  make  the  appointment  which 
she  sought.  The  letter  requested  that  I  withdraw  the 
name  which  had  been  sent  in  and  appoint  her  son  in 
order  that  she  might  rise  again  from  what  otherwise 
would  be  her  last  illness.  I  wrote  another  sympathetic 
letter  explaining  why  this  could  not  be  done.  The 
appointment  I  had  made  was  confirmed  immediately 
after,  and  within  two  days  this  lady  and  her  husband 
were  the  first  guests  to  greet  Mrs.  Taft  and  me  at  a 
White  House  musicale,  without  the  slightest  evidence 
of  any  illness  at  all,  and  with  an  attractive  smile  which 
seemed  to  say,  "That  episode  is  ended  and  we  are  on 
good  terms  still." 

A  lady  of  charming  appearance  and  manner,  elegantly 
gowned,  came  to  me  when  I  was  Secretary  of  War, 
and  asked  that  her  son  be  admitted  to  West  Point. 
The  son  had  been  appointed,  but  had  failed  to  pass  the 
entrance  examinations.  I  explained  to  her  why  we  had 
to  be  very  careful  in  making  our  examinations  as  stiff 
as  we  dared  to  make  them  because  the  benefit  and  ad- 
vantage of  an  appointment  to  West  Point,  which  gave 
a  fine  education,  and  during  which  the  cadets  received 
a  salary  from  the  government,  justified  a  test  elim- 
inating the  unworthy.  She  rather  impatiently  asked 
me  to  examine  the  papers,  which  I  did,  and  found  to  my 
surprise  that  her  son  had  passed  an  examination  in 
which  he  had  obtained  a  mark  of  95  out  of  100.  This 
was  unusual  and  commended  him  strongly  to  me.  I 
found  that  his  rejection  had  been  on  the  ground  that  his 


chest  measurement  did  not  bear  such  a  ratio  to  his 
height,  which  was  great,  as  the  medical  board  had 
thought  to  be  proper  and  necessary.  I  explained  to 
the  lady  the  necessity  that  we  were  under  of  having 
strong  and  healthy  boys  educated  at  West  Point,  be- 
cause if  there  was  anything  organically  the  trouble  with 
them  which  might  develop  later,  the  government  ran 
the  risk  of  being  obliged  to  retire  such  men  for  disabil- 
ity and  to  pay  them  three-fourths  pay  all  their  lives 
without  receiving  any  compensatory  service.  She 
listened  to  this  explanation  with  a  lack  of  attention  and 
a  nervous  restlessness  which  husbands  will  understand. 
An  examination  of  the  papers,  however,  made  me  feel 
that,  as  we  needed  men  of  brains  as  well  as  brawn  in  the 
army,  the  unusual  mental  capacity  would  justify  my 
running  the  risk  of  the  boy's  filling  out  his  chest  meas- 
urements to  the  required  extent.  I  said  to  the  mother 
therefore  that  as  I  had  no  difficulty  in  filling  out  my 
chest  measurement,  I  thought  it  would  be  possible  for 
her  son,  with  his  intellectual  capacity,  to  follow  a  regi- 
men to  give  his  lungs  the  proper  room,  and  that  I  was 
inclined  to  waive  the  objections.  She  did  not  quite 
follow  me  in  my  statement  and  she  inquired  eagerly, 
"Are  you  going  to  let  him  in?"  I  said  I  was,  and 
then  there  spread  over  her  comely  face  a  rosy  smile,  and 
she  hesitated  a  moment  to  think  what  she  could  say  to 
express  her  gratitude  and  her  satisfaction  with  me,  and 
then  she  said,  "Mr.  Secretary,  you  are  not  nearly  so  fat 
as  they  say  you  are."  A  recollection  of  that  remark 
has  enabled  me  to  get  through  a  good  many  scenes 
that  were  much  more  annoying  and  had  a  much  less 
satisfactory  issue. 


The  framers  of  our  Constitution  had  one  essential 
feature  of  efficient  government  clearly  in  mind.  They 
gave  to  the  Executive  officer  charged  in  law  with  the 
responsibility  and  actually  charged  by  the  people  with 
the  responsibility  of  carrying  on  the  Executive  depart- 
ment of  the  government,  the  power  and  means  of  meet- 
ing that  responsibility.  They  vested  in  him  complete 
power  to  appoint  all  the  officers  of  the  government  who 
were  subordinate  to  him,  and  upon  whose  political  capac- 
ity and  governmental  discretion  would  depend  the  wise 
carrying  out  of  his  policies.  They  gave  him  the  power 
of  absolute  removal,  and  they  placed  in  his  hands  the 
control  of  the  action  of  all  those  who  took  part  in  the 
discharge  of  the  political  duties  of  the  executive  de- 
partment. They  acted  on  a  sound  political  princi- 
ple, and  it  ought  to  be  introduced  into  every  field 
of  governmental  activity,  into  the  states  and  into  the 
cities.  The  plan  under  which  a  dozen  state  officers 
engaged  in  executing  the  laws  are  elected  on  one  ticket 
and  have  no  relation  of  subordination  to  the  normal 
executive  head,  the  governor,  is  as  absurd  as  it  can  be. 
It  is  one  of  those  anomalies  in  our  political  history,  of 
which  there  are  a  number,  which  seem  to  refute  the 
idea  that  we  are  an  intelligent  and  clear-sighted  people, 
because  the  system  adopted  is  so  utterly  at  variance 
with  the  teachings  of  experience.  But  we  have  had 
such  governments  —  indeed  most  of  our  state  govern- 
ments are  of  this  kind.  They  have  not  been  as  good 
governments  as  they  might  have  been  or  as  they  ought 
to  have  been,  and  yet  they  have  worked.  The  fact 
that  they  have  worked,  may  properly  be  taken  as  the 
most  conclusive  evidence  of  the  political  capacity  of  the 


American  people  through  public  opinion  to  main- 
tain a  fairly  good  government  and  to  get  along  some- 
how, with  what  seems  a  priori  to  be  an  impossible 
system.  The  Constitutional  Convention  has  recom- 
mended a  change  in  the  present  form  of  the  government 
of  New  York,  which  is  a  most  flagrant  example  in  its 
plan  of  what  a  state  government  ought  not  to  be.  They 
have  reduced  the  number  of  elective  officers  to  four, 
on  the  principle  of  what  is  called  the  short  ballot,  and 
they  have  put  the  seventeeen  departments  of  the  state 
under  the  executive  control  of  the  governor.  This  is  as  it 
should  be,  and  is  a  step  forward  of  such  notable  and  radi- 
cal character  that  the  change  that  it  would  make  alone 
is  enough  to  justify  the  adoption  of  the  proposed  Con- 



THE  widest  power  and  the  broadest  duty  which  the 
President  has  is  conferred  and  imposed  by  a  clause  in 
section  three  of  article  two,  providing  that  "he  shall 
take  care  that  the  laws  be  faithfully  executed."  This 
same  duty  is  enforced  by  the  provision  that  before  he 
enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation : 

I  do  solemnly  swear  or  affirm  that  I  will  faithfully  execute  the 
office  of  President  of  the  United  States,  and  will  to  the  best  of  my 
ability,  preserve,  protect  and  defend  the  Constitution  of  the  United 


In  executing  a  statute  of  Congress,  through  the  proper 
department  and  the  proper  subordinate  officers,  the 
President's  course  is  as  clear,  or  as  doubtful,  as  the 
statute.  In  order  that  he  or  his  subordinates  shall 
enforce  the  statute,  they  must  necessarily  find  out 
what  it  means,  and  on  their  interpretation  of  it  enforce 
the  law.  Statutory  construction  is  practically  one  of 
the  greatest  of  executive  powers.  Some  one  has  said, 
"Let  me  make  the  ballads  of  the  country,  and  I  care 
not  who  makes  the  laws."  One  might  also  say,  para- 
phrasing this,  "Let  any  one  make  the  laws  of  the  coun- 
try, if  I  can  construe  them."  Of  course  ultimately 



where  a  statute  affects  private  right,  it  is  likely  to  come 
before  the  courts  in  actual  litigation  and  to  put  upon 
the  courts  the  duty  of  its  construction.  But  there 
are  many  statutes  that  do  not  affect  private  right  in 
such  a  way  that  they  come  under  the  court's  interpre- 
tation; and  in  such  cases  Executive  interpretation 
is  final.  Even  where  it  is  not,  it  is  very  persuasive 
with  courts  who  subsequently  are  obliged  to  adjudge 
the  meaning  of  the  statute. 

In  the  practical  provision  for  the  enforcement  of 
law  by  Congress,  that  body  has  found  it  necessary  to 
impose  upon  the  President  or  his  subordinates  not  only 
a  purely  Executive  function,  but  to  enlarge  this  into 
what  are  really  quasi-legislative  and  quasi-judicial 
duties.  Frequently  in  statutes  covering  a  wide  field, 
Congress  confers  upon  the  particular  subordinate  of 
the  President,  who  is  to  execute  this  law,  the  power 
to  make  rules  and  regulations  under  it  which  are  legis- 
lative in  their  nature.  This  is  for  the  purpose  of  ena- 
bling those  who  are  affected  by  the  terms  of  the  law, 
both  government  officers  and  the  public,  to  learn  how 
it  is  to  be  enforced,  and  how  it  is  to  be  complied  with. 
If  you  would  know  the  importance,  difficulty  and  wide 
discretion  involved  in  such  a  task,  I  commend  you  to 
the  present  income  tax,  and  beg  you  to  note  "the  main 
strength"  that  had  to  be  used  in  formulating  work- 
able regulations  for  its  operation  and  enforcement, 
and  which  were  really  a  reconciliation  of  the  parts  of 
the  law  that  seemed  inconsistent  and  almost  irrec- 

The  Commissioner  of  Internal  Revenue,  with  the 
approval  of  the  Secretary  of  the  Treasury,  issues  regu- 


lations  for  the  collection  of  the  internal  revenue  taxes 
generally.  The  customs  laws  are  interpreted  and  sup- 
plemented by  regulations  of  the  Secretary  of  the  Treas- 
ury. The  Department  of  the  Interior,  in  the  adminis- 
tration of  the  land  laws,  has  a  book  of  regulations  that 
are  of  a  minor  legislative  character,  and  this  is  true  of 
other  bureaus  and  departments  of  the  government  in 
respect  to  laws  to  be  enforced  by  them. 

Congressional  legislation  often  confers  on  those  who 
comply  with  its  conditions  property  rights  or  valu- 
able privileges.  Now  Congress  may  exercise  a  choice 
as  to  whether  it  shall  give  jurisdiction  to  pass  upon  the 
claims  of  those  seeking  these  rights  to  an  Executive 
tribunal  or  a  Judicial  tribunal.  The  application  for 
a  patent  for  an  invention  is  made  to  the  Commissioner 
of  Patents  or  a  subordinate,  but  provision  is  made  for 
an  appeal  from  his  decision  to  the  Secretary  of  the 
Interior  and  thence  to  a  court.  Soldiers'  pensions, 
however,  and  patents  under  the  homestead  and  other 
general  land  laws  for  government  lands,  are  granted 
upon  application,  after  a  hearing  before  an  Executive 
tribunal,  to  determine  whether  the  applicants  come 
within  the  conditions  of  the  act  granting  the  pension 
or  the  land.  Under  the  immigration  acts  are  officers 
exercising  similar  quasi- judicial  powers  subject  to 
review  by  the  head  of  the  department  only,  for  the 
purpose  of  determining  whether  immigrants  who  come 
to  this  country  are  eligible  under  its  laws  to  enter. 
The  laws  have  now  gone  to  the  extent  of  providing 
that  such  tribunals  may  direct  the  deportation  of 
those  who  have  illegally  entered,  and  that  they  may 
finally  decide,  after  a  fair  hearing,  whether  a  man  claim- 


ing  to  be  a  citizen  of  the  United  States,  and  thus  en- 
titled to  enter,  is  really  such  a  citizen.  This  shows 
how  judicial  in  its  nature  the  function  of  the  subordi- 
nates of  the  President  in  the  execution  of  laws  may 

Then  consider  the  drawing  of  money  from  the  Treas- 
ury Department  under  an  appropriation  act.  The 
drawing  of  the  warrant  must  be  approved  by  the  Comp- 
troller of  the  Treasury.  It  is  for  him  to  say  how  the 
appropriation  act  shall  be  construed  and  whether  the 
warrant  is  lawful  and  whether  the  money  can  be  drawn. 
The  Comptroller  of  the  Treasury  is  an  appointee  of 
the  President,  and  in  a  general  sense  is  his  subordinate. 
If  the  President  does  not  like  him  as  a  Comptroller,  he 
can  remove  him  and  with  the  consent  of  the  Senate  put 
in  another  one,  but  under  the  act  of  Congress  creating 
the  office,  the  President  cannot  control  or  revise  the  de- 
cisions of  this  officer.  His  work  is  like  the  work  I  have 
referred  to,  quasi-judicial.  If  the  claim  is  rejected  by 
him,  the  claimant  may  in  some  cases  carry  his  case  into 
the  Court  of  Claims,  but  if  he  decides  for  the  claimant, 
the  public  and  those  interested  in  maintaining  the  side 
of  the  government  have  no  appeal,  and  his  decision  is 

Originally  claims  against  the  government  could  not 
be  heard  in  court.  The  government  did  not  permit 
itself  to  be  sued,  the  claims  were  passed  upon  by  Execu- 
tive officers  and  were  referred  to  Congress  for  its  con- 
sideration and  action  by  appropriation.  Now  a  Court 
of  Claims  has  been  established  with  jurisdiction  to 
hear  and  adjudge  suits  against  the  United  States,  based 
on  contracts,  express  or  implied,  and  in  a  narrow  class 


of  torts.  Judgments  in  the  Court  of  Claims  are  certified 
to  Congress  for  payment  and  are  subject  to  review  by 
the  Supreme  Court  of  the  United  States.  This  develop- 
ment from  the  decision  of  executive  officers  from  claims 
depending  upon  government  concession  or  grants, 
into  executive  tribunals  and  finally  into  a  real  judicial 
hearing  before  a  court,  is  one  of  numerous  instances 
of  the  tendencies  of  the  Anglo-Saxon  to  give  a  hear- 
ing as  fair  and  equitable  as  is  consistent  with  the 
effective  operation  of  the  government  purpose.  It  was 
seen  originally  in  the  growth  and  development  of  the 
court  of  chancery  out  of  the  arbitrary  decisions  of  the 
Lord  Keeper  in  dealing  with  the  litigants  at  common 
law,  and  ameliorating  its  rigidity.  The  creation  of 
many  executive  Commissions  has  given  rise  to  qualms 
in  the  minds  of  some,  lest  we  are  departing  from  those 
forms  of  proceeding  intended  to  protect  individual 
right.  It  may  well  be  pointed  out  that  the  trend  in 
all  such  executive  tribunals  is  toward  due  judicial  hear- 
ing and  procedure. 

The  instances  that  I  have  been  considering  are  cases 
of  government  concession.  Of  course  in  such  cases 
it  is  entirely  within  the  power  of  Congress  to  prescribe 
the  conditions  of  granting  the  concession.  When 
individuals  are  affected  by  act  of  Congress  in  their 
vested  rights  of  life,  liberty  and  property,  then  Con- 
gress is  limited  in  conferring  its  method.  One  gen- 
eral limitation  is  that  Congress  may  not  deprive  a 
person  of  his  life,  liberty  or  property  except  by  due 
process  of  law.  Therefore  Congress  may  not  confer 
on  the  Executive,  judicial  power,  that  is,  power  to 
decide  cases  that  according  to  the  due  course  of  law 


should  be  heard  by  courts.  Such  are  controversies 
of  private  right  between  individuals.  Such  are  the 
trials  of  individuals  for  crimes.  An  executive  may  not 
be  vested  with  the  authority  to  decide  such  issues. 
This  is  the  general  rule,  and  yet  custom  and  the  due 
course  at  common  law  have  created  exceptions  to  this 
general  rule,  exceptions  growing  out  of  the  inherent 
necessities  of  government.  The  collection  of  taxes 
deprives  a  man  of  his  property  by  taking  a  part  of  it, 
but  there  is  no  limitation  upon  the  legislative  power 
requiring  it  to  afford  judicial  settlement  of  the  amount 
of  taxes  to  be  collected  from  an  individual  under  uni- 
form rules  laid  down  by  the  legislature.  The  method 
must  be  summary.  Congress  may  vest  final  decision 
as  to  their  construction  in  any  executive  officer  or 
board.  Of  course  if  the  tax  law  violates  the  Constitu- 
tion, then  it  is  void  and  gives  no  officer  any  authority 
to  act  under  it.  But  where  the  question  is  only  one 
of  construction,  Congress  may,  in  tax  cases,  keep  it  out 
of  the  courts  entirely  and  vest  final  interpretation  and 
execution  in  the  taxing  officer.  Congress  has  not  gen- 
erally done  this,  but  has  ultimately  given  an  oppor- 
tunity for  the  taxpayer  to  appeal  to  the  Federal  courts. 
However,  the  United  States  always  takes  the  money 
first.  No  injunction  is  permitted  to  suspend  the  agony 
of  an  unwilling  taxpayer  and  permit  him  to  withhold 
the  money  pending  the  deliberation  of  a  court. 

The  express  duties  defined  in  the  statute,  and  dis- 
tributed to  the  departments  and  to  the  various 
appointees  of  the  President,  create  a  great  permanent 
organization  over  which  he  can  exercise  only  a  very 
general  supervision.  Under  the  civil  service  laws, 


inadequate  as  they  are  in  some  respects,  the  continuity 
of  the  government  in  the  departments  at  Washington 
in  routine  matters  is  fairly  well  settled  and  is  little 
changed  from  administration  to  administration.  It 
would  be  difficult,  if  the  President  chose  to  exercise 
the  power  he  has,  to  impose  his  personality  minutely 
on  the  going  government.  He  can  insist  upon  greater 
economy.  He  can  infuse  a  new  spirit  in  the  service  by 
making  plain  his  earnest  desire  for  greater  efficiency, 
and  yet  while  he  is,  of  course,  the  real  head  of  the  gov- 
ernment, there  seems  to  be  an  impersonal  entity  in  the 
permanent  governmental  structure,  independent  of 
him,  which  in  some  degree  modifies  his  responsibility 
for  its  operation.  Chiefs  of  Divisions  and  clerks  of 
Bureaus  in  the  civil  service  in  Washington  have  been 
there  for  decades.  They  are  loyal  to  the  government, 
and  not  especially  beholden  to  any  one  President. 
They  are  as  important  in  the  army  of  civil  servants 
as  the  old  non-commissioned  officers  are  in  a  military 
force.  They  have  far  greater  experience  than  the  heads 
of  their  departments  and  bureaus  who  change  every 
Presidential  term.  Their  life-long  fidelity  and  effi- 
ciency are  not  rewarded  by  notices  in  headlines.  They 
have  true  philosophy,  and  are  content  with  small 
salaries,  permanent  tenure,  a  conscience  of  duty  well 
done  and  the  flattering  dependence  upon  them  that 
their  immediate  superiors  manifest.  This  permanent 
structure  of  government  works  on.  Presidents  may 
go  to  the  seashore  or  to  the  mountains,  Cabinet  Officers 
may  go  about  the  country  explaining  how  fortunate 
the  country  is  in  having  such  an  administration,  but 
the  machinery  at  Washington  continues  to  operate 


under  this  army  of  faithful  non-commissioned  officers, 
and  the  great  mass  of  governmental  business  is  un- 
interrupted. The  President  notes  little  of  this  normal 
operation  of  the  regular  vast  machine  of  government, 
which  in  many  respects  is  automatic,  unless  its  work- 
ings result  in  a  break  or  there  is  a  palpable  need  of 
repair.  The  chief  concern  of  the  President  is  in 
following  a  path  that  is  not  so  clearly  beaten  as 
the  routine  work  done  by  this  inconspicuous  but 
necessary  governmental  machine  which  I  have  de- 

The  laws  that  the  President  must  take  care  shall  be 
faithfully  executed  are  not  confined  to  acts  of  Con- 
gress. The  treaties  of  the  United  States  with  other 
countries  are  under  the  Constitution  laws  of  the  United 
States  having  the  same  effect  as  Congressional  enact- 
ments, in  so  far  as  they  are  intended  to  operate  in  this 
way  and  are  in  form  appropriate.  Sometimes,  how- 
ever, Congress  does  not  like  a  treaty  and  refuses  to 
pass  a  law  to  make  compliance  with  it  by  the  Execu- 
tive as  easy  at  it  ought  to  be.  This  was  the  case 
with  the  treaty  which  John  Jay  made  with  Great 
Britain.  Jay  was  hung  in  effigy,  and  his  work  though 
ratified  by  the  Senate  and  Washington  was  nearly 
as  unpopular  as  the  alien  and  sedition  laws  of  a  little 
later  period. 

Jay's  Treaty  provided  that  England  and  the  United 
States  on  proper  requisition  from  each  to  the  other 
should  deliver  up  all  persons  charged  with  murder  or 
forgery,  within  the  jurisdiction  of  one  and  seeking 
an  asylum  in  the  jurisdiction  of  the  other.  Congress 
during  John  Adams'  administration  passed  no  law 


to  carry  out  this  article  and  made  no  provision,  as  it 
has  done  since  in  all  such  cases,  for  any  examination 
of  the  accused  before  a  court  as  the  basis  for  granting 
a  warrant  of  extradition.  No  express  power  was  given 
to  the  President  to  issue  such  a  warrant.  The  matter 
stood  on  the  naked  words  of  the  treaty.  A  subject 
of  Great  Britain  committed  a  murder  on  the  high  seas 
on  a  British  ship,  and  then  escaped  to  South  Carolina. 
He  was  there  apprehended  and  brought  before  the 
Federal  court  for  commitment  on  the  charge  of  piracy 
in  alleged  violation  of  statutes  of  the  United  States. 
President  Adams  wrote  to  the  examining  judge  that 
it  did  not  seem  to  him  that  this  was  piracy  and  that 
the  Federal  court  had  no  jurisdiction  over  the  act  as 
such ;  that  the  crime  was  murder  and  was  committed 
within  the  jurisdiction  of  Great  Britain  and  therefore 
was  within  the  treaty;  that  the  English  government 
had  requested  the  delivery  of  the  accused  under  the 
treaty  to  their  agent,  and  that  if  the  judge  found  the 
evidence  of  the  probable  guilt  of  the  prisoner  sufficient, 
he,  the  President,  would  order  him  to  be  turned  over 
to  England.  The  judge  agreed  that  there  was  no  juris- 
diction in  the  Federal  court,  but  said  that  the  evidence 
was  sufficient  for  commitment  on  the  charge  of  homicide. 
The  President  issued  his  warrant,  the  man  was  de- 
livered to  the  English  authorities  and  was  tried  and 
executed  for  his  offense.  Edward  Livingston,  one  of 
the  greatest  jurists  that  ever  lived  in  the  United  States, 
was  then  a  Republican  member  of  Congress  and  a  fol- 
lower of  Jefferson,  and  a  very  strenuous  political  oppo- 
nent of  President  Adams.  He  introduced  resolutions 
which  recited  that  the  action  of  the  President  was  an 


unjustifiable  interference  with  the  court's  jurisdiction, 
that  there  was  no  statute  authorizing  an  order  of  ex- 
tradition by  the  President,  and  therefore  that  his  act 
was  a  usurpation  and  a  violation  of  the  personal  rights 
of  the  man  who  had  been  extradited  and  executed. 
John  Marshall,  afterwards  Chief  Justice,  was  then  a 
member  of  the  House  of  Representatives  and  a  sup- 
porter of  the  administration.  He  made  an  argument 
to  sustain  the  validity  of  President  Adams'  warrant. 
It  is  reported  in  the  first  appendix  of  the  Fifth  Wheaton. 
Mr.  Justice  Gray,  speaking  for  the  Supreme  Court, 
nearly  one  hundred  years  later,  pronounced  the  argu- 
ment to  be  masterly  and  conclusive,  and  to  establish  that 
within  the  President's  constitutional  obligation  to  take 
care  that  the  laws  be  faithfully  executed,  the  treaty  ob- 
ligation of  the  United  States  was  such  a  law.  If  you 
will  read  the  argument  of  then  Congressman  Marshall, 
you  will  agree  with  the  Court  and  Mr.  Justice  Gray. 
It  is  as  convincing  and  as  judicial  in  its  tone  as  one  of 
Chief  Justice  Marshall's  great  judgments. 

A  similar  instance  came  within  my  own  official 
cognizance  when  I  was  Secretary  of  War.  In  the 
absence  of  Mr.  Root,  Secretary  of  State,  President 
Roosevelt  sent  me  to  Cuba  to  see  if  we  could  compose 
a  revolution  against  President  Palma's  government 
in  that  Republic.  We  found  a  revolution  flagrant, 
and  we  felt  that  intervention  was  necessary,  and  the 
question  was  whether  the  President,  without  action 
of  Congress,  could  use  the  army  and  navy  and  inter- 
vene under  the  so-called  Platt  Amendment  of  the  Treaty 
between  Cuba  and  the  United  States.  That  Amend- 
ment was  in  part  as  follows : 


The  Government  of  Cuba  consents  that  the  United  States 
may  exercise  the  right  to  intervene  for  the  preservation  of  Cuban 
independence,  and  the  maintenance  of  a  government  adequate  for 
the  protection  of  life,  property,  and  individual  liberty. 

I  advised  the  President  that  this  treaty,  pro  tanto, 
extended  the  jurisdiction  of  the  United  States  to  main- 
tain law  and  order  over  Cuba  in  case  of  threatened 
insurrection,  and  of  danger  of  life,  property  and  in- 
dividual liberty,  and  that  under  his  duty  to  take  care 
that  the  laws  be  executed  this  was  "a  law"  and  his 
power  to  see  that  it  was  executed  was  clear.  Events 
followed  quickly  our  investigation  and  recommenda- 
tions, and  I  was  obliged  to  ask  for  the  army  and  navy 
and  by  authority  of  President  Roosevelt  to  institute  a 
provisional  government,  which  lasted  nearly  two  years. 
It  restored  order  and  provided  a  fair  election  law, 
conducted  a  fair  election,  and  turned  that  government 
over  to  the  officers  elected  under  the  Constitution  of 
Cuba.  There  were  some  mutterings  by  Senators  that 
under  the  Platt  Amendment,  Congress  only  could 
decide  to  take  action.  However,  the  matter  never 
reached  the  adoption  of  a  resolution.  Congress  appro- 
priated the  money  needed  to  meet  the  extraordinary 
military  and  naval  expenditures  required,  and  recog- 
nized the  provisional  government  in  Cuba  in  such  a 
way  as  to  make  the  course  taken  a  precedent. 

Nor  are  the  laws  of  the  execution  of  which  the  Presi- 
dent is  to  take  care,  confined  to  express  Congressional 
statutes  and  provisions  having  force  of  law  in  treaties. 
The  Supreme  Court  has  declared  that  any  obligation 
inferable  from  the  Constitution,  or  any  duty  of  the 
President  or  the  Attorney-General  to  be  derived 


from  the  general  code  of  his  duties  under  the  laws 
of  the  United  States  is  a  law  within  the  meaning  of 
this  phrase.  This  was  decided  in  an  interesting  case 
from  California.  Sarah  Althea  Hill,  a  resident  in 
California,  said  she  was  married  to  Ex-Senator  Sharon 
of  Nevada,  and  Senator  Sharon  said  she  was  not. 
She  brought  suit  in  the  courts  of  California  to  secure 
a  divorce,  with  alimony,  to  be  satisfied  out  of  his  very 
large  estate,  and  made  proof  of  the  marriage  by  intro- 
ducing a  letter  purporting  to  be  written  by  Senator 
Sharon  admitting  the  marriage.  Senator  Sharon  then 
went  into  the  Federal  Court  as  a  citizen  of  Nevada, 
and  sued  Miss  Hill  of  Calif ornia  to  compel  her  to  deliver 
up  this  paper  purporting  to  be  a  letter  of  his,  on  the 
ground  that  it  was  false  and  forged,  and  that  she  was 
using  it  to  his  detriment,  as  she  certainly  was.  In 
the  Federal  Court,  Mr.  Justice  Field  rendered  several 
decisions  adverse  to  Miss  Hill's  claims.  Meantime, 
Senator  Sharon  had  died  and  Miss  Hill  had  married  her 
counsel,  Judge  Terry.  When  Justice  Field  was  deliv- 
ering one  of  his  judgments,  adverse  to  Mrs.  Terry, 
Judge  and  Mrs.  Terry  were  in  the  court-room,  and 
Mrs.  Terry  rose  and  denounced  Judge  Field  and  at- 
tempted to  assault  him.  He  sent  her  to  jail  for  thirty 
days.  He  also  sent  Judge  Terry  to  jail  for  assault  made 
by  him  upon  the  court  bailiffs  after  Mrs.  Terry's 
arrest.  Judge  and  Mrs.  Terry  then  and  frequently 
thereafter  threatened  that  when  the  opportunity 
came  they  would  kill  Judge  Field.  The  Justice  re- 
turned to  Washington  to  sit  upon  the  Supreme  Court 
and  notice  of  the  threats  was  brought  to  the  attention 
of  Attorney-General  Miller.  He  deemed  them  seri- 


ous  enough  to  direct  the  United  States  Marshal  of 
California  to  assign  a  deputy  to  accompany  Justice 
Field  when  he  was  traveling  upon  the  circuit  the 
next  year  in  California.  This  was  done.  After  having 
held  court  at  Los  Angeles,  Mr.  Justice  Field  was 
traveling  to  San  Francisco  to  hold  court  there.  He  got 
out  of  the  train  at  Lathrop,  a  station  near  Fresno,  to 
breakfast.  At  the  same  time  a  train  arrived  from  San 
Francisco  upon  which  were  Judge  and  Mrs.  Terry. 
Justice  Field  had  entered  the  restaurant  when  the 
Terrys  came  in  and  saw  him.  Mrs.  Terry  at  once 
returned  to  her  sleeping  car  to  secure  a  revolver  which 
she  had  left  in  her  satchel.  Judge  Terry  advanced 
toward  Judge  Field,  and  as  the  court  found,  attacked 
him  from  behind.  Neagle,  the  Deputy  United  States 
Marshal,  who  was  protecting  Judge  Field,  rose,  called 
to  Terry  that  he  was  an  officer,  and  demanded  that  he 
cease  his  attack.  Terry,  as  Neagle  testified,  made 
a  movement  as  if  to  draw  a  weapon,  and  in  defense  of 
Justice  Field  Neagle  shot  twice  and  killed  Terry. 
Neagle  was  indicted  in  the  state  court  of  California 
for  murder  for  killing  Terry.  He  applied  to  the  Circuit 
Court  of  the  United  States  for  a  writ  of  habeas  corpus 
to  discharge  him  from  the  custody  of  the  state  court, 
on  the  ground  that  the  act  for  which  he  had  been  in- 
dicted he  had'  committed  in  pursuance  of  a  law  of  the 
United  States,  and  that  under  the  Federal  statute 
giving  in  such  case  the  right  of  release  by  habeas  corpus 
by  the  Federal  Courts  he  was  entitled  to  his  discharge. 
Judge  Sawyer,  of  the  Circuit  Court,  granted  Neagle's 
application  and  released  him.  The  state  of  Cali- 
fornia carried  the  case  to  the  Supreme  Court  of  the 


United  States.  The  question  was  whether  in  the 
absence  of  an  express  statute  giving  the  President  or 
the  Attorney-General  of  the  United  States  or  the  United 
States  Marshal  the  duty  and  power  to  protect  a  United 
States  Judge  in  the  discharge  of  his  duties  such  pro- 
tection was  an  act  in  pursuance  of  a  law  of  the  United 
States.  The  Court  likened  the  word  "law"  to  the 
term  "laws"  in  the  constitutional  obligation  of  the 
President  to  take  care  that  the  laws  of  the  United  States 
be  faithfully  executed,  and  Mr.  Justice  Miller,  speak- 
ing for  the  Court,  held  that  the  government  of  the 
United  States,  in  view  of  the  constitutional  provision 
for  the  appointment  of  Judges  and  the  establishment 
of  a  system  of  courts,  was  under  an  obligation  to  pro- 
tect its  Judges  from  assault  by  disappointed  litigants 
when  those  Judges  were  in  the  discharge  of  their  official 
duties,  and  that  such  an  obligation  constituted  a  law 
which  it  was  the  duty  of  the  President  to  take  care 
should  be  faithfully  executed.  He  said,  "It  would  be 
a  great  reproach  to  the  system  of  government  of  the 
United  States,  declared  to  be  within  its  sphere,  sover- 
eign and  supreme,  if  there  is  to  be  found  within  the 
domain  of  its  powers  no  means  of  protecting  its  Judges 
in  the  conscientious  and  faithful  discharge  of  their 
duties  from  malice  and  hatred  of  those  upon  whom 
their  judgments  may  operate  unfavorably." 

Speaking  of  the  injunction  upon  the  President  to 
take  care  that  the  laws  be  faithfully  executed,  he  said, 
"Is  this  duty  limited  to  the  enforcement  of  acts  of 
Congress  or  of  treaties  of  the  United  States  according 
to  their  express  terms,  or  does  it  include  the  rights, 
duties  and  obligation  growing  out  of  the  Constitution 


itself,  our  international  relations  and  all  the  protection 
implied  by  the  nature  of  the  government  under  the 
Constitution?"  He  affirms  the  latter  alternative. 

He  then  cites  the  action  of  a  captain  of  a  United 
States  naval  vessel  in  compelling  the  surrender  in  the 
harbor  of  Smyrna,  by  an  Austrian  vessel,  of  Kotza, 
a  Hungarian,  who  had  made  his  declaration  of  inten- 
tion to  become  a  citizen  of  the  United  States,  as  an 
instance  in  which  the  Executive  enforced  "a  law"  of 
the  United  States,  not  on  the  statute  book,  in  protect- 
ing an  "embryo"  American  citizen  against  foreign 
aggression.  He  instances  as  analogous  cases  the  action 
of  the  President  in  ordering  the  army  and  marshals  of 
the  United  States  to  maintain  the  safety  of  the  mails, 
and  to  protect  public  land  from  trespassers,  all  in  the 
interest  of  the  government,  and  all  without  express 
statutory  authority  so  to  do. 

The  same  principle  seems  to  be  exemplified  in  Logan 
against  the  United  States,  144  U.  S.  263-284. 
There  a  band  conspired  to  kill  certain  prisoners  in 
the  custody  of  a  United  States  Marshal,  and  being 
carried  from  court  to  a  jail.  The  prisoners  were 
handcuffed  and  shackled,  and  several  of  them  as 
well  as  their  assailants  were  killed  in  the  attack. 
The  surviving  conspirators  were  indicted  under  a 
statute  of  the  United  States  punishing  a  conspiracy  to 
injure  or  oppress  any  citizen  in  the  free  exercise  or 
enjoyment  of  "a  right  then  and  there  secured  to  him 
by  the  Constitution  of  the  United  States."  Neither 
the  Constitution  nor  any  statute  expressly  provides 
for  protection  of  a  United  States  prisoner  from 
assault  or  conspiracy.  But  the  Court  held  that  he 


does  have  a  right  under  the  Constitution  to  be  pro- 
tected from  assault.  Mr.  Justice  Gray,  speaking  for 
the  Court,  said,  "In  this  case  the  United  States  having 
the  absolute  right  to  hold  prisoners,  have  an  equal 
duty  to  protect  them  while  so  held  against  assault 
or  injury  from  any  quarter.  The  existence  of  that 
duty  on  the  part  of  the  government  necessarily  im- 
plied a  corresponding  right  of  the  prisoner  to  be  so 
protected  and  this  right  of  the  prisoners  is  a  right 
secured  to  them  by  the  Constitution  and  laws  of  the 
United  States." 

Let  me  give  another  example  of  a  law  not  embodied 
in  a  statute  or  treaty,  which,  due  to  Congressional 
neglect  to  act,  the  President  has  had  to  see  executed. 

By  an  act  approved  April  28th,  1904,  the  President 
was  directed  to  take  possession  and  occupy  on  behalf 
of  the  United  States  the  Canal  Zone,  the  dominion 
over  which  had  been  acquired  under  the  Hay-Varilla 
Treaty,  just  then  ratified.  The  seventh  section  of 
the  act  provided  "that  all  the  military,  civil  and  judi- 
cial powers,  as  well  as  the  power  to  make  the  rules 
and  regulations  necessary  for  the  government  of  the 
Canal  Zone,  should  be  vested  in  such  a  person  and 
should  be  exercised  in  such  a  manner  as  the  President 
should  direct  until  the  expiration  of  the  58th  Congress." 

When  the  58th  Congress  expired  no  further  provision 
had  been  made  for  the  government  of  the  Zone.  I  was 
Secretary  of  War  from  1904  to  1908,  and  in  charge  of 
the  Canal  work.  The  question  arose  as  to  what  was 
to  be  done  in  this  legislative  lapse  of  government  after 
the  death  of  the  58th  Congress.  I  had  no  hesitation 
in  advising  the  President,  and  I  may  add  he  had  no 


hesitation  in  accepting  the  advice,  that  his  statutory 
duty  was  to  build  the  Canal,  and  his  constitutional 
duty  to  take  care  that  the  laws  be  faithfully  executed 
required  him  to  maintain  the  existing  government  and 
continue  the  status  quo  which  was  necessary  to  the 
construction  of  the  Canal.  Congress  made  no  further 
provision  for  the  government  of  the  Zone  for  seven 
years,  and  by  its  acquiescence  vindicated  this  view 
of  the  President's  duty.  It  is  true  that  one  Congress- 
man, now  the  Governor  General  of  the  Philippines, 
rose  in  his  place  in  Congress  to  denounce  our  usurpa- 
tion, but  except  for  his  lucubration  on  the  subject, 
no  objection  was  made  in  Congress  and  no  action  was 
taken.  The  truth  was  that  Congress  did  not  know 
exactly  what  to  do  and  so  left  it  to  the  President  to 
assume  the  responsibility. 

The  President  is  the  Commander-in-Chief  of  the 
army  and  navy,  and  the  militia  when  called  into  the 
service  of  the  United  States.  Under  this,  he  can  order 
the  army  and  navy  anywhere  he  will,  if  the  appropria- 
tions furnish  the  means  of  transportation.  Of  course  the 
instrumentality  which  this  power  furnishes,  gives  the 
President  an  opportunity  to  do  things  which  involve 
consequences  that  it  would  be  quite  beyond  his  power 
under  the  Constitution  directly  to  effect.  Under  the 
Constitution,  only  Congress  has  the  power  to  declare 
war,  but  with  the  army  and  the  navy,  the  President  can 
take  action  such  as  to  involve  the  country  in  war  and 
to  leave  Congress  no  option  but  to  declare  it  or  to  recog- 
nize its  existence.  This  was  the  charge  made  against 
President  Polk  in  beginning  the  Mexican  War.  War 
as  a  legal  fact,  it  was  decided  by  the  Supreme  Court 


in  Prize  cases,  can  exist  by  invasion  of  this  country 
by  a  foreign  enemy  or  by  such  an  insurrection  as  oc- 
curred during  the  Civil  War,  without  any  declaration 
of  war  by  Congress  at  all,  and  it  is  only  in  the  case  of 
a  war  of  our  aggression  against  a  foreign  country  that 
the  power  of  Congress  must  be  affirmatively  asserted  to 
establish  its  legal  existence. 

What  constitutes  an  act  of  war  by  the  land  or  naval 
forces  of  the  United  States  is  sometimes  a  nice  question 
of  law  and  fact.  It  really  seems  to  differ  with  the  char- 
acter of  the  nation  whose  relations  with  the  United 
States  are  affected.  The  unstable  condition  as  to 
law  and  order  of  some  of  the  Central  American  Re- 
publics seems  to  create  different  rules  of  international 
law  from  those  that  obtain  in  governments  that  can 
be  depended  upon  to  maintain  their  own  peace  and 
order.  It  has  been  frequently  necessary  for  the  Presi- 
dent to  direct  the  landing  of  naval  marines  from 
United  States  vessels  in  Central  America  to  protect 
the  American  consulate  and  American  citizens  and 
their  property.  He  has  done  this  under  his  general 
power  as  Commander-in-Chief.  It  grows  not  out 
of  any  specific  act  of  Congress,  but  out  of  that 
obligation,  inferable  from  the  Constitution,  of  the  gov- 
ernment to  protect  the  rights  of  an  American  citizen 
against  foreign  aggression,  as  in  the  Kotza  incident, 
cited  by  Mr.  Justice  Miller  in  the  Neagle  case.  In 
practice  the  use  of  the  naval  marines  for  such  a  purpose 
has  become  so  common  that  their  landing  is  treated 
as  a  mere  local  police  measure,  whereas  if  troops  of  the 
regular  army  are  used  for  such  a  purpose,  it  seems 
to  take  on  the  color  of  an  act  of  war. 


Thus  it  would  be  difficult  to  explain  the  landing 
of  our  army  in  Vera  Cruz  by  force,  as  anything  but 
an  act  of  war  to  punish  the  government  of  Huerta 
in  Mexico  for  its  refusal  to  render  what  was  deemed  by 
President  Wilson  as  a  proper  apology  for  a  violation 
of  our  international  rights  in  the  arrest  of  some  of  our 
sailors.  This  act  was  committed  before  authority  was 
given  by  Congress,  but  the  necessary  authority  for  it 
had  passed  one  House  and  was  passing  another  at  the 
time,  and  the  question  as  to  the  right  of  the  Executive 
to  take  the  action  without  Congressional  authority  was 
avoided  by  full  and  immediate  ratification. 

In  Nicaragua  in  my  administration,  an  insurrection 
had  led  to  the  immurement  of  American  citizens  by 
insurrectos  and  the  threatened  destruction  of  Ameri- 
can property.  The  President  of  Nicaragua,  whom  we 
had  recognized  and  whose  Minister  we  had  received, 
called  upon  us  to  protect  our  own  citizens  and  their 
property  because  he  was  unable  to  render  them  the 
protection  which  their  treaty  rights  gave  them.  This 
led  to  the  landing  of  marines  and  quite  a  campaign, 
which  resulted  in  the  maintenance  of  law  and  order  and 
the  elimination  of  the  insurrectos.  This  was  not  an  act 
of  war,  because  it  was  done  at  the  request  and  with 
the  consent  of  the  lawful  authorities  of  the  territory 
where  it  took  place. 

As  Commander-in-Chief  and  in  taking  care  that 
the  laws  be  faithfully  executed,  President  Cleveland 
sent  General  Miles  to  Chicago  to  remove  the-  ob- 
struction to  the  passage  of  the  mails  and  of  inter- 
state commerce  which  Debs  at  the  head  of  the 
American  Railway  Union  was  effecting  by  violence 


and  other  unlawful  means.  This  was  the  case  where 
Governor  Altgelt  sought  by  protest  to  keep  the  army  out 
of  Illinois,  on  the  ground  that  until  he  or  the  legislature 
requested  it,  the  President  had  no  right  to  send  it  into 
the  state  for  the  purpose  of  suppressing  disorder. 
President  Cleveland  and  Attorney-General  Olney 
earned  the  gratitude  of  all  lovers  of  peace  and  good 
order  by  the  firm  stand  which  they  took  in  this  matter 
and  in  maintaining  what  the  Supreme  Court  had  so 
often  decided,  that  every  foot  of  land  within  the  "juris- 
diction of  the  United  States,  whether  in  a  state  or 
territory,  or  in  the  District  of  Columbia,  is  territory  of 
the  United  States  upon  which  the  laws  of  the  United 
States  can  be  executed  by  the  President  with  all  the 
forces  which  he  has  at  his  Jqwful  command ;  that  there  is 
a  peace  of  the  United  States,  a  violation  of  which  con- 
sists in  forcible  resistance  to  Federal  laws.  Mr.  Cleve^ 
land  did  not  have  to  consult  Governor  Altgelt  as  to 
whether  he  should  send  an  army  to  Illinois  to  see  that 
the  peace  of  the  United  States  was  preserved  and  that 
the  Federal  laws  were  faithfully  executed  there.  The 
full  legality  of  President  Cleveland's  action  in  this 
regard  was  sustained  by  the  unanimous  judgment  of 
the  Supreme  Court  in  the  Debs  case. 

The  Constitution  provides  that  the  United  States 
shall  protect  each  state  against  invasion  and  on  the 
application  of  the  Legislature,  or  of  the  Executive  when 
the  Legislature  cannot  be  convened,  against  domestic 
violence ;  and  an  early  statute  of  the  United  States, 
still  in  force,  provides  that  on  such  an  application  the 
President  may  use  the  militia  of  any  state  or  the  regu- 
lar army  to  suppress  such  insurrection.  In  the  case 


of  Rhode  Island  as  between  claimants  for  the  governor- 
ship, the  court  held  that  it  was  within  the  power  of 
the  Federal  Executive  conclusively  to  determine  so  far 
as  that  court  was  concerned  who  was  the  governor  of 
the  state,  a  result  quite  analogous  to  that  which  enables 
the  President  to  recognize  foreign  governments  and 
to  bind  all  other  departments  of  the  government  by 
his  recognition. 

There  is,  however,  a  far  wider  exercise  of  the  authority 
by  the  Executive  in  his  capacity  as  Commander-in-Chief. 
It  was  exemplified  in  and  after  the  Spanish  War. 
Before  and  after  the  Treaty  of  Paris  was  made  with 
Spain,  by  which  there  were  left  in  our  possession, 
as  owners,  the  Philippines  and  Porto  Rico,  and  in 
our  custody,  as  trustees  for  the  people  of  Cuba,  the 
Island  of  Cuba,  we  acquired  responsibilities  which 
were  met  by  occupation  of  those  islands  and  their 
government  by  our  army  and  navy.  In  the  case  of 
Cuba,  this  continued  from  1898  until  1903,  when  the 
island  was  turned  over  to  the  Cuban  Republic.  In 
the  case  of  Porto  Rico  this  continued  from  1898  until 
the  taking  effect  of  the  Foraker  Act  in  April,  1900, 
and  in  the  Philippines  from  August  13th,  1898,  when 
we  took  Manila,  until  March,  1902,  when  the  Presi- 
dent was  expressly  given  power  to  establish  a  civil 
government  there.  During  all  this  interval  of  Con- 
gressional silence,  and  acquiescence  in  the  action  of 
the  President  as  Commander-in-Chief,  he  directly, 
or  through  his  appointed  agents,  exercised  all  the 
executive  power  and  all  the  legislative  power  of 
government  in  those  territories.  After  suppressing 
actual  disorder,  he  created  a  quasi-civil  government 


and  appointed  an  executive,  a  civil  legislature  and 
civil  judges,  and  became  the  lawgiver  of  ten  millions 
of  people  for  a  period  ranging  from  two  years  to  four. 
There  was  nothing  new  or  startling  in  the  principle 
of  this  temporary  enlargement  of  his  executive  functions. 
Its  novelty  was  in  the  great  volume  of  power  which 
the  circumstances  thrust  on  him  and  the  extent  of  the 
responsibilities  and  the  wide  discretion  which  he  had  to 
exercise.  The  validity  of  such  action  had  been  recog- 
nized by  the  Supreme  Court  in  similar  cases  arising  after 
the  Mexican  War,  when  we  took  over  California  and  New 
Mexico.  The  delay  of  Congress  was  useful  in  all  these 
cases.  In  respect  to  Porto  Rico,  Congress  probably 
acted  too  quickly,  for  the  Foraker  Act,  which  provided 
for  its  government,  was  made  like  the  usual  territorial 
acts  in  the  United  States,  and  it  did  not  fit  quite  the 
civilization  to  which  it  was  applied  in  this  community 
of  Spanish  laws  and  customs.  In  the  Philippines, 
under  the  wise  and  statesmanlike  foresight  of  Secretary 
Root  the  civil  government  was  framed  gradually  in 
that  country  to  suit  the  exigencies.  Congress  was  quite 
willing  to  let  President  McKinley  handle  the  difficult 
problems  until  experience  should  throw  light  on  the 
situation.  When  it  did  act,  it  ratified  everything  the 
President  had  done  and  continued  under  its  authority 
the  government  which  had  been  initiated  and  created 
by  the  Commander-in-Chief. 

There  is  an  instance  of  Congressional  ratification  in 
which  I  took  part  that  has  some  humorous  features 
that  perhaps  would  make  it  of  interest  to  repeat  it. 

In  1902,  while  I  was  Governor  of  the  Philippines,  I 
returned  to  this  country  and  visited  Washington,  and 


had  the  pleasure  of  spending  thirty  days  with  Mr. 
Root  as  his  guest.  One  Sunday  afternoon,  while  we 
were  talking  over  Philippine  matters,  he  called  my 
attention  to  the  fact  that  a  question  had  been  raised 
as  to  the  right  of  the  then  Philippine  Government, 
without  express  Congressional  authority,  to  impose 
duties  on  goods  imported  into  the  Philippines  from  the 
United  States.  These  duties  had  been  a  source  of  a 
large  part  of  the  revenues  which  we  used  in  carrying  on 
the  government  in  the  Islands.  He  said  to  me,  "Now, 
Taft,  we  have  collected  this  money,  and  we  have  dis- 
bursed it,  and  if  there  is  any  doubt  about  it,  we  ought  to 
remove  that  doubt  and  not  be  put  in  the  attitude  of 
unlawfully  extorting  money  and  expending  it  for  gov- 
ernmental purposes.  Therefore,  let's  draw  up  a  section 
for  the  pending  Philippine  bill,  which  shall  ratify  the 
collection  of  these  duties."  Accordingly,  we  sat  down 
and  jointly  drafted  such  a  section  which  was  made  a 
part  of  the  Philippine  Act,  passed  in  July,  1902,  for 
the  government  of  the  Islands.  Thereafter  a  series  of 
suits  were  brought  to  recover  back  the  duties  collected 
by  the  Philippine  Government  on  goods  imported  from 
the  United  States.  The  total  amount  sought  to  be 
recovered  in  these  suits  was  about  $3,000,000.  One 
of  the  suits  seeking  to  recover  from  the  United  States 
$100,000,  by  Warner,  Barnes  &  Company,  was  brought 
to  a  hearing  in  the  Court  of  Claims  and  there  defeated, 
on  the  ground  that  there  was  war  in  the  Philippines  and 
the  general  commanding  had  the  right  to  levy  duties 
as  he  chose.  The  matter  of  ratification  by  Congress 
was*  not  very  much  considered.  The  case  was  carried 
to  the  Supreme  Court.  The  Supreme  Court  reversed 


the  decision  and  gave  judgment  for  Warner,  Barnes  & 
Company  for  the  full  $100,000.  The  question  of  rati- 
fication was  summarily  considered  by  the  Court,  and 
to  the  disgust  of  Mr.  Root  and  myself,  the  Court  held 
that  the  clause  which  we  had  drafted  for  the  purpose 
of  ratifying  the  action  of  the  Philippine  Government  in 
collecting  these  duties,  was  not  intended  by  Congress  to 
effect  the  very  ratification  which  we  sought.  The  joke 
was  certainly  on  us.  After  the  opinion  of  the  Court 
was  announced,  the  counsel  for  all  these  claims,  who  I 
am  advised  was  very  largely  interested  in  their  recovery, 
because  his  fee  was  to  be  a  percentage,  came  to  ask  me, 
then  Secretary  of  War,  to  consent  to  an  entry  of  the 
same  judgment  in  all  the  other  suits,  which  would  have 
amounted  to  a  judgment  for  $3,000,000  against  the 
government.  I  felt  very  indignant  over  what  I  re- 
garded as  the  injustice  and  inequity  of  the  decision. 
These  claimants  had  been  able  to  collect  the  amount 
of  the  duties  in  the  prices  at  which  they  sold  the  goods 
in  the  Philippines,  and  now  they  were  seeking  to  make 
the  government  pay  twice  to  them  after  it  had  used  the 
money  collected  to  give  them  a  good  government.  In 
a  somewhat  heated  conversation  with  counsel,  I 
expressed  my  feelings  in  regard  to  the  judgment  of  the 
Court  in  such  a  way  as  to  lead  him  to  denounce  me  as 
an  anarchist  and  not  properly  respectful  to  the  judg- 
ment of  the  highest  tribunal  in  the  world.  I  declined 
utterly  to  consent  to  any  judgment  and  notified  him  of 
an  intention  to  file  an  application  for  a  rehearing.  Such 
an  application  was  filed,  and  to  the  surprise  of  counsel, 
was  granted,  because  the  judgment  had  been  a  unani- 
mous judgment  and  it  was  supposed  that  a  rehearing 


would  never  be  granted  in  such  a  case.  The  case  was 
then  reargued,  and  in  that  hearing  the  importance  of 
the  ratification  by  Congress  was  emphasized.  We  did 
not  succeed  in  inducing  the  Court  to  reverse  itself, 
though  we  did  elicit  from  the  member  of  the  Court  writ- 
ing the  opinion  that  there  were  some  parts  of  the  record 
that  had  escaped  his  attention.  Two  of  the  judges 
dissented  from  the  judgment  of  the  Court.  It  then 
occurred  to  me  that  if  the  question  turned  on  ratification, 
it  was  not  too  late  to  ratify  the  collections  as  to  all  the 
claims  except  that  one  which  had  passed  into  judgment. 
So  I  went  to  Mr.  Joseph  Cannon,  the  Chairman  of  the 
Appropriations  Committee  of  the  House,  and  presented 
the  case  to  him.  I  don't  think  Mr.  Cannon  has  ever 
done  any  work  more  valuable  for  the  government  than 
he  did  as  the  watchdog  of  the  Treasury,  even  though 
he  sometimes  had  a  profane  bark.  He  at  once  fell  in 
with  my  suggestion  that  we  have  a  second  clause  of 
ratification  which  would  leave  no  doubt  in  the  mind 
of  the  Court  that  Congress  intended  to  ratify  the 
collection  of  the  duties  in  question.  I  also  consulted 
Mr.  Hale,  of  Maine,  who  was  Chairman  of  the  Com- 
mittee on  Appropriations  in  the  Senate,  and  enlisted 
his  active  cooperation.  We  had  a  fight  on  the  floor  of 
the  House  and  the  Senate  before  we  succeeded  in  putting 
the  ratification  through.  The  question  then  came  up 
again  on  the  second  ratification  and  in  that  case  we 
secured  a  majority  of  the  court,  Mr.  Justice  White 
pronouncing  the  judgment  in  favor  of  the  effective- 
ness of  the  ratification,  and  in  this  way  we  defeated 
what  I  have  always  regarded  as  an  inequitable  claim. 
Of  course  those  of  us  who  were  interested  thought 


that  the  last  judgment  was  a  deliverance  of  a  Daniel 
come  to  judgment.  I  do  not  say  that  there  is  any 
association  between  that  judgment  and  the  fact 
that  the  Judge  who  pronounced  the  majority  opinion 
is  now.  the  Chief  Justice  of  the  United  States;  but 
so  he  is. 


ONE  of  the  President's  most  important  powers  is 
that  which  he  exercises  over  our  foreign  relations. 
We  are  just  now  very  much  interested  in  the  issues 
between  us  and  foreign  countries.  They  seem  to  be 
dwarfing  domestic  questions.  The  greatest  war  the 
world  ever  saw  comes  close  to  us.  Our  attitude  as  a 
neutral,  and  the  necessary  interference  with  the  com- 
merce between  us  and  belligerents,  raises  controversies 
which  call  for  the  utmost  care  in  their  negotiation  and 

It  is  well  to  premise  what  I  have  to  say  about  the 
Executive  power  in  such  matters  by  pointing  out  the 
exclusive  jurisdiction  that  the  Federal  government 
has  in  dealing  with  foreign  nations.  In  our  domestic 
matters,  the  Executive  power  is  divided  between  the 
President,  the  governors  of  the  states,  the  Legislative 
power  between  Congress  and  the  Legislatures  of  the 
states,  and  the  Judicial  power  between  the  Federal 
Judiciary  and  the  state  courts ;  but  when  we  come  to 
governmental  action  with  respect  to  foreign  countries, 
we  find  that  the  framers  of  the  Constitution  were  most 
careful  to  vest  in  the  national  government  complete 
jurisdiction,  and  industriously  excluded  by  express  pro- 
hibition the  interference  of  the  states  therein.  Thus 
the  President  and  the  Senate  were  given  power  to  make 



treaties  with  foreign  nations,  while  all  states  are  ex- 
pressly forbidden  to  make  them.  Congress  is  given 
power  to  regulate  foreign  commerce,  to  levy  import  and 
tonnage  duties,  to  declare  war  and  to  maintain  armies 
and  navies  for  the  purpose  of  carrying  on  war,  to 
authorize  privateers  to  prey  upon  the  enemy's  commerce, 
to  make  rules  concerning  captures  on  land  and  water, 
to  make  a  uniform  rule  of  naturalization,  and  to  de- 
nounce and  punish  offenses  against  the  law  of  nations, 
while  the  states  are  expressly  forbidden  to  declare  war, 
to  grant  letters  of  marque  and  reprisal,  or  indeed  to 
maintain  a  navy  or  a  standing  army,  or  to  levy  import 
or  tonnage  duties.  The  Federal  Courts  are  given  juris- 
diction in  all  cases  affecting  Ambassadors  and  other 
public  Ministers  and  Consuls,  and  in  cases  arising  be- 
tween a  state  or  the  citizens  thereof  and  foreign  states, 
citizens  and  subjects ;  while  the  President  is  given  the 
power  to  appoint  Ambassadors,  with  the  advice  and 
consent  of  the  Senate,  and  to  receive  Ambassadors  from 
foreign  countries,  and  as  Commander-in-Chief  of  the 
army  and  navy  to  repel  invasions  and  to  carry  on  the 
war  declared  by  Congress. 

The  first  and  most  important  duty  connected  with 
foreign  relations  that  the  President  has  is  that  of  initiat- 
ing and  drafting  treaties  with  foreign  nations  and  sub- 
mitting them  to  the  Senate  for  the  Senate's  advice  and 
consent,  and  a  two-thirds  vote  of  those  present  is  re- 
quired in  the  Senate  lawfully  to  advise  and  consent  to  a 
treaty.  Originally  in  the  Constitutional  Convention,  it 
was  proposed  that  the  Senate  should  appoint  Ambassa- 
dors and  should  make  treaties ;  but  toward  the  latter 
part  of  the  Convention  a  change  was  made  in  this  regard, 


and  the  power  of  the  President  was  very  much  amplified  ; 
and  in  the  matter  of  treaties  it  was  given  to  him  to  nego- 
tiate them  and  to  ratify  and  proclaim  them.  Neither 
the  Senate  nor  the  House,  nor  both  of  them  together, 
can  compel  the  President  to  make  a  treaty.  He  has  the 
sole  initiative  in  this  regard.  Nor  is  he  bound,  after 
he  has  made  a  treaty,  and  the  Senate  has  advised 
/  and  consented  to  it,  to  ratify  it  and  proclaim  it, 
and  the  treaty  does  not  go  into  effect  until  its  ratifi- 
cation. There  have  been  many  discussions  in  the 
Senate  over  this  treaty-making  power,  and  Senators 
have  assumed  that  the  Senate  was  the  more  important 
factor  in  the  making  of  treaties  than  the  Executive. 
They  have  usually  in  their  arguments  referred  to  the 
fact  that  Madison  moved  in  the  Convention  that  the 
Senate  should  make  the  treaties  without  the  inter- 
vention of  the  Executive,  and  that  it  was  at  first 
adopted.  But  I  am  not  able  to  discover  why 
this  history  of  the  present  constitutional  provision 
should  exalt  the  Senate  or  make  more  important  its 
existing  power.  It  is  the  present  text  of  the  funda- 
mental law  that  determines  who  shall  exercise  the 
powers  which  it  confers,  and  I  do  not  understand  why 
the  function  that  the  Senate  performs  is  any  more 
important  or  any  more  sacred  than  that  of  the  Execu- 
tive in  the  making  of  treaties. 

This  leads  me  to  refer  to  the  ground  upon  which  two- 
thirds  of  the  Senate  refused  to  advise  and  consent  to 
the  general  arbitration  treaties  negotiated  by  Secretary 
Knox  during  my  administration  with  England  and 
France.  The  treaties  in  effect  provided  that  the 
countries  concerned  should  submit  all  questions  capable 


of  judicial  solution  arising  between  them,  which  could  not 
be  settled  by  negotiation,  to  the  decision  of  an  arbitral 
tribunal,  and  in  case  of  a  difference,  to  submit  to  a 
preliminary  tribunal  the  question  whether  an  issue 
arising  was  capable  of  judicial  solution  and  therefore 
must  be  arbitrated  under  the  treaty.  A  number  of 
Senators  objected  to  the  effect  of  these  treaties  in  that 
they  took  away  from  the  Senate  the  power  to  withhold 
consent  to  an  arbitration  of  a  future  issue  and  thus  pre- 
vented the  Senate  from  exercising  the  constitutional 
function  with  which  it  is  charged,  of  dealing  with  foreign 
relations  as  they  arise.  It  was  argued  that  such  a  treaty 
would  be  delegating  to  the  permanent  arbitral  court  a  de- 
cision as  to  our  foreign  relations  which  was  vested  in  the 
Senate,  and  that  it  was  unconstitutional  for  the  Senate  to 
consent  to  make  such  a  delegation.  This  view  it  seems 
to  me  is  radically  wrong,  or  else  it  proves  too  much. 
There  is  no  difference  in  principle  between  the  consent 
of  the  Senate  that  an  existing  issue  between  us  and  a 
foreign  nation  shall  be  settled  by  arbitration  and  an 
agreement  that  future  questions  of  a  defined  class  shall 
be  so  settled.  If  the  submission  of  a  question  to  arbi- 
tration is  a  delegation  to  the  arbitration  tribunal  of  the 
power  vested  in  the  Senate  over  our  foreign  relations, 
then  the  Senate  has  no  power  to  consent  to  arbitration 
at  all ;  and  yet  this  it  has  done  since  the  foundation  of 
the  government.  But  it  is  said  that  by  delegating  to  a 
preliminary  tribunal  the  question  whether  the  issue 
arising  is  within  the  terms  of  the  treaty  or  not,  the 
Senate  is  delegating  its  power.  This  view  is  as  faulty 
as  the  other  one.  The  question  whether  an  issue  is 
arbitrable  within  the  classification  of  the  treaty  is  a 


question  of  the  construction  of  a  treaty ;  and  one  of  the 
commonest  subjects  of  arbitration  is  the  proper  con- 
struction of  a  treaty.  Therefore,  if  the  Senate  were 
to  consent  to  abide  the  judgment  of  a  tribunal  in  the 
future  as  to  whether  an  issue  arising  between  us  and  a 
foreign  nation  is  within  a  class  of  arbitrable  questions 
described  in  a  treaty,  it  is  only  consenting  to  arbitrate 
the  construction  of  the  treaty  when  the  event  occurs 
which  requires  construction.  This  it  has  done  in 
numerous  treaties  already. 

The  Senate  is  therefore  wrong  in  its  view  of  this 
matter,  if  its  view  is  to  rest  on  the  limitations  of  its  con- 
stitutional powers.  If  its  view  rests  merely  on  the 
question  of  expediency,  that  is  a  different  thing,  and  I 
do  not  need  to  argue  that.  But  I  think  it  is  of  the  ut- 
most importance  that  every  one  interested  in  the  estab- 
lishment of  a  League  of  Nations,  for  the  settlement  of 
differences  between  them  by  an  international  court, 
should  realize  that  the  attitude  of  the  Senate  upon  the 
point  I  have  been  discussing  would  make  it  impossible 
for  the  United  States  to  become  a  member  of  such  a 
League.  I  am  anxious,  therefore,  in  season  and  out  of 
season,  to  argue  as  forcibly  as  I  may  the  error  of  the 
Senate  in  this  regard. 

The  treaty-making  power  is  a  very  broad  one.  In- 
deed, it  is  much  more  important  under  our  Con- 
stitution than  in  any  other  country  that  I  know. 
According  to  our  Constitution,  a  treaty  of  the  United 
States,  in  so  far  as  its  provisions  are  in  an  ap- 
propriate form  to  operate  as  such,  is  a  law  in  the 
United  States,  exactly  as  a  statute  of  Congress  is 
a  law  in  the  United  States.  I  think  I  have  already 


invited  your  attention  to  the  fact  that  a  treaty  may 
repeal  a  law  of  Congress  if  it  is  inconsistent  with  it,  and 
that  a  law  of  Congress  may  repeal  a  treaty.  A  treaty 
operates  both  as  a  binding  contract  with  a  foreign 
nation  and  as  municipal  law.  As  a  contract  binding 
upon  both  parties,  it  cannot  be  made  to  lose  its  obliga- 
tion by  a  refusal  of  either  country  to  perform  it.  It  is 
thus  broken,  but  the  party  injured  by  the  breach  has 
in  international  law  a  right  to  damages  from  the 
party  breaking  it.  If  Congress  passes  a  statute  in- 
consistent with  the  treaty,  while  it  breaks  the  treaty 
it  repeals  it  as  municipal  law.  It  does  not  relieve 
the  nation  from  its  moral  and  international  obliga- 
tion to  make  good  the  breach  by  damages  or  other- 
wise, but  it  does  change  the  law  which  binds  the 
officers,  citizens  and  others  within  the  governmental 
jurisdiction  of  the  United  States,  to  comply  not  with 
the  treaty,  but  with  the  law  which  abrogated  it. 
This  was  the  effect  of  the  decision  of  the  Supreme 
Court  in  the  Chinese  cases.  Under  our  treaty  with 
China  certain  classes  of  Chinese  were  entitled  to 
come  into  the  country.  Congress  desired  to  exclude 
many  of  the  classes  thus  entitled,  and  passed  a  law 
doing  so.  The  law  broke  the  treaty,  but  the  immi- 
gration officers,  the  courts  and  all  persons  within  the 
territorial  jurisdiction  of  the  United  States  were  obliged 
to  conform  to  the  act  of  Congress,  and  to  exclude  those 
Chinese  who  had  the  right  to  come  in  under  the  treaty 
but  were  forbidden  to  do  so  by  the  subsequent  law. 

The  treaty-making  power  is  in  some  respects  wider 
than  the  power  of  Congress  in  the  enactment  of  statutes, 
in  this :  As  between  the  states  and  the  Federal  gov- 


eminent,  Congressional  legislation  m  limited  to  a 
Federal  field  marked  by  the  powers  expressly  granted  to 
Congress  within  the  Constitution  and  those  which  may 
be  reasonably  implied  as  necessary  and  proper  to  the 
exercise  of  the  express  powers.  All  other  powers  are 
exercised  by  the  legislatures  of  the  state  within  the 
restrictions  of  their  respective  Constitutions.  The 
treaty-making  power,  however,  is  dealing  with  our 
foreign  relations,  and  when  we  deal  with  our  foreign 
relations,  we  are  a  nation  undivided  and  presenting  a 
united  front.  Everything,  therefore,  that  is  natural  or 
customarily  involved  in  such  foreign  relations,  a  treaty 
may  cover,  whether  beyond  the  law-making  power  of 
Congress  and  within  the  control  of  state  legislatures, 
or  not.  Now  one  of  the  usual  subjects  for  con- 
sideration of  a  treaty  is  the  rights  of  the  citizens  or 
subjects  of  one  country  while  resident  in,  or  passing 
through,  the  country  of  the  other,  to  security  of  life  and 
limb,  to  the  carrying  on  of  business,  or  to  the  inheriting 
of  property  or  its  transmission.  The  subjects  of  regulat- 
ing business  in  a  state,  the  inheritance  of  property  and 
its  transmission  are  ordinarily  within  the  cognizance  of 
state  legislatures  and  are  not  within  the  power  of 
Congress.  Yet  by  a  treaty,  aliens  may  be  given  rights 
in  a  state  in  respect  to  such  matters  even  though  this  is 
at  variance  with  the  laws  of  the  state,  and  to  that 
extent  the  treaty-making  power  controls  the  statute  of 
the  state.  It  makes  an  exception  to  the  state  statute, 
in  favor  of  the  aliens  whose  rights  are  defined  in  the 
treaty.  This  has  been  decided  so  many  times  that  there 
is  no  doubt  about  the  correctness  of  the  view.  The 
Supreme  Court  has  declined  to  imply  the  same  limita- 


tions  upon  the  treaty-making  power  as  the  Constitution 
imposes  upon  Congressional  law-making.  It  has  said 
that  the  treaty-making  power  would  not  of  course  reach 
to  changing  a  form  of  state  government  or  perhaps 
parting  with  state  territory,  but  it  has  left  quite  general 
and  undefined  the  field  that  it  may  occupy. 

Sometimes  the  Executive  has  not  made  a  treaty  with 
a  foreign  government,  but  has  recommended  to  Con- 
gress the  passage  of  a  law,  which,  with  similar  action  by 
the  other  country,  constitutes  an  agreement  between 
them.  Thus  the  statute  authorizing  reciprocity  with 
Canada,  which  passed  Congress  during  my  admin- 
istration, relating  to  the  imposition  of  duties  in  this 
country,  which  was  to  take  effect  upon  the  enactment 
of  a  corresponding  law  in  Canada,  would,  if  Canada 
had  passed  a  similar  statute,  have  constituted  an  agree- 
ment from  which  each  government  could  withdraw  at 
will.  It  was  not  in  form  a  contract  or  a  treaty. 
So,  too,  when  I  was  Secretary  of  War,  President  Roose- 
velt sent  me  to  Panama  to  adjust  the  relations  between 
the  United  States  and  Panama  under  the  Hay-Varilla 
Treaty.  That  treaty  was  very  hastily  drawn,  and 
many  things  were  left  most  indefinite,  as  for  instance 
the  boundaries  of  the  Zone  at  the  termini  of  the  Zone. 
The  Zone  was  not  to  include  the  town  of  Colon  or  the 
town  of  Panama  and  yet  there  was  no  official  delimita- 
tion in  the  records  of  Panama  or  Colombia  of  either 
town.  We  were  to  occupy  the  same  bed  with  the  Pana- 
manians, but  our  half  was  in  the  middle.  This  created 
in  many  ways  an  embarrassing  situation,  and  in  some 
way  or  other  a  modus  vivendi  had  to  be  established. 
The  absence  of  it  had  caused  great  irritation  and 


threatened  to  obstruct  the  carrying  on  of  the  con- 
struction of  the  Canal.  I  agreed  with  the  President 
of  the  Republic  upon  a  plan  by  which  we  might 
comfortably  and  peaceably  take  and  occupy  our 
half  and  the  people  and  government  of  Panama 
might  keep  on  either  side.  The  plan  contained  a  great 
many  different  provisions.  I  had  no  power  to  make  a 
treaty  with  Panama,  but  I  did  have,  with  the  authority 
of  the  President,  the  right  to  make  rules  equivalent  to 
law  in  the  Zone.  I  therefore  issued  an  order  directing 
the  carrying  out  of  the  plan  agreed  upon  in  so  far  as  it 
was  necessary  to  carry  it  out  on  our  side  of  the  line,  on 
condition  that,  and  as  long  as,  the  regulations  to  be 
made  by  Panama  were  enforced  by  that  government. 
This  was  approved  by  Secretary  Hay  and  the  President 
and  has  constituted  down  until  the  present  day,  I 
believe,  the  basis  upon  which  the  two  governments  are 
carried  on  in  this  close  proximity.  It  was  attacked 
vigorously  in  the  Senate  as  a  usurpation  of  the  treaty- 
making  power,  and  I  was  summoned  before  a  committee 
in  the  Senate  to  justify  what  had  been  done.  There 
was  a  great  deal  of  eloquence  over  this  usurpation  of  the 
Senate's  prerogative  by  Mr.  Morgan  and  other  Senators, 
but  the  modus  vivendi  continued  as  the  practical  agree- 
ment between  the  nations  for  certainly  more  than  seven 
years,  and  my  impression  is  that  it  is  still  in  force  in 
most  of  its  provisions. 

The  President  has  a  very  large  authority  outside  of 
treaty-making  in  our  foreign  relations.  He  appoints 
our  Ambassadors  to  other  countries,  and  he  receives 
Ambassadors  from  them.  This  gives  him  necessarily 
the  duty  of  carrying  on  foreign  negotiations  be- 


tween  ourselves  and  foreign  countries.  He  and  he 
alone  is  the  representative  of  our  nation  in  dealing 
with  foreign  nations.  When  I  say  he  alone,  I  mean 
that  it  is  he  to  whom  the  foreign  nations  look. 
He  has  Ambassadors  and  Ministers  and  Consuls  in 
other  countries,  but  they  only  represent  him.  In 
receiving  foreign  Ambassadors  and  in  sending  them,  he 
is  bound  to  determine,  when  there  is  any  dispute,  who 
the  lawful  government  is,  to  whom  he  wishes  to  accredit 
his  Ambassador  and  from  whom  he  wishes  to  receive 
an  Ambassador.  Therefore  in  him  is  necessarily  vested 
the  power  and  duty  of  recognizing  the  lawful  govern- 
ment of  any  country.  The  influence  that  he  can  exert 
in  his  recognition  of  a  foreign  government  we  have  seen 
illustrated  in  President  Wilson's  refusal  to  recognize 
Huerta  and  his  announcement  that  he  never  would 
recognize  him.  We  can  see  the  same  influence  at  work 
at  present  in  behalf  of  Carranza,  whom  he  has  recog- 
nized as  the  de  facto  President  against  Villa. 

The  President  carries  on  the  correspondence  through 
the  State  Department  with  all  foreign  countries.  He  is 
bound  in  such  correspondence  to  discuss  the  proper 
construction  of  treaties.  He  must  formulate  the  for- 
eign policies  of  our  government.  He  must  state  our 
attitude  upon  questions  constantly  arising.  While 
strictly  he  may  not  bind  our  government  as  a  treaty 
would  bind  it,  to  a  definition  of  its  rights,  still  in  future 
discussions  foreign  Secretaries  of  other  countries  are 
wont  to  look  for  support  of  their  contentions  to  the 
declarations  and  admissions  of  our  Secretaries  of  State 
in  other  controversies  as  in  a  sense  binding  upon  us. 
There  is  thus  much  practical  framing  of  our  foreign 


policies  in  the  executive  conduct  of  our  foreign  rela- 

One  of  the  most  important  strokes  in  our  international 
history  was  the  correspondence  carried  on  by  Secretary 
Hay  under  President  McKinley  in  the  establishment  of 
the  policy  of  the  open  door  in  China  and  equal  facilities 
for  all  nations  in  dealing  with  that  important  empire. 
That  policy  was  stated  in  a  note  by  Secretary  Hay  and 
acquiesced  in  by  all  the  nations  concerned,  and  that 
without  any  advice  and  consent  of  the  Senate. 

Whenever  our  American  citizens  have  claims  to  pre- 
sent against  a  foreign  nation,  they  do  it  through  the 
President  by  the  State  Department ;  and  when  foreign 
citizens  have  claims  to  present  against  us,  they  present 
them  through  their  diplomatic  representatives  to  our 
State  Department,  and  the  formulation  and  the  dis- 
cussion of  the  merits  of  those  claims  create  an  important 
body  of  precedents  in  our  foreign  policy. 

The  importance  of  the  President  in  our  foreign  rela- 
tions, when  his  power  in  that  regard  is  considered  in 
connection  with  his  duty  to  take  care  that  the  laws 
are  faithfully  executed,  and  with  his  duty  as  Com- 
mander-in-Chief  to  direct  the  movements  of  the  Army 
and  Navy,  may  be  noted  in  the  authority  which 
President  McKinley  exercised  to  take  part  in  the  so- 
called  "  Boxer  War,"  in  China.  The  lawless  uprising 
in  that  ancient  Empire  against  foreigners,  which  for 
the  time  being  overthrew  the  power  of  the  Imperial 
Government,  exposed  to  danger  the  lives  of  the  diplo- 
matic representatives  of  foreign  nations  at  Pekin,  and 
brought  about  the  murder  of  one  of  them.  Uniting 
with  other  governments,  President  McKinley,  without 


express  Congressional  authority,  ordered  the  land  and 
naval  forces  of  the  United  States  into  a  campaign  to 
rescue  the  foreign  legations  which  were  besieged  in 

There  has  always  been  a  dispute  as  to  whether  the 
treaty-making  power  can  bind  Congress  to  the  obliga- 
tion of  a  treaty,  so  that  if  a  treaty  provides  for  the 
payment  of  money,  Congress  is  under  an  obligation 
to  appropriate  the  money.  Of  course  a  treaty  may  not 
take  money  out  of  the  Treasury  of  the  United  States, 
because  under  the  Constitution  that  can  only  be  taken 
out  by  Congress,  but  it  has  always  seemed  to  me  that 
while  Congress  in  appropriating  money  for  any  purpose 
exercises  its  discretion,  in  that  it  has  the  actual  power 
to  pay  or  not  to  pay,  it  is  bound  in  honor  to  perform 
the  contract  which  the  government  of  the  United  States 
has  made  through  that  agency  appointed  by  the  Con- 
stitution to  make  the  contract.  When  Congress  in  its 
discretion,  as  the  appropriating  branch  of  the  govern- 
ment, refuses  to  appropriate  the  money  which  the 
treaty-making  power  has  agreed  shall  be  paid  it  is 
merely  violating  the  plighted  faith  of  the  government. 
Just  so,  it  may  abrogate  a  treaty  obligation  by  statute, 
but  it  does  not  annul  the  obligation.  It  is  exercising 
the  same  power  that  a  man  has  to  refuse  to  pay  his 
note  after  he  has  made  it  through  an  authorized  agent. 
The  man  can  be  compelled  to  pay  his  note.  Congress 
may  not  be  compelled  because  of  its  exercising  the 
functions  of  sovereignty,  but  its  failure  to  act  does  not 
destroy  its  obligation. 

The  President  may  not  annul  or  abrogate  a  treaty 
without  the  consent  of  the  Senate  unless  he  is  given 


that  specific  authority  by  the  terms  of  the  treaty.  The 
ending  of  a  treaty  is  to  be  effected  by  the  same  power 
which  made  the  treaty.  An  instance  in  my  own  experi- 
ence of  annulling  a  treaty  comes  to  me.  We  had  a 
treaty  with  Russia  proclaimed  in  1832.  It  was  a  treaty 
of  commerce  and  friendship.  It  gave  to  our  merchants 
certain  rights  in  Russia  in  carrying  on  business.  Russia 
refused  to  extend  the  rights  assured  to  our  merchants  to 
Jews,  on  the  ground  that  Jews  in  Russia  were  limited 
in  their  commercial  activities  and  were  obliged  to  carry 
them  on  within  a  pale  in  that  country,  and  that  when 
our  merchants  being  Jews  sought  to  avail  themselves  of 
the  privileges  of  the  treaty,  they  were  either  denied 
admission  or  were  subjected  to  the  local  laws  of  Russia 
and  were  limited  as  their  coreligionists  were  limited  in 
Russia.  From  the  time  that  the  question  was  mooted 
the  two  countries  had  differed  as  to  construction.  A 
similar  question  had  arisen  between  France  and  Russia 
and  between  England  and  Russia,  but  Russia  had 
always  insisted  upon  maintaining  the  position  I  have 
described.  The  attitude  so  contrary  to  our  notions  of 
equity  and  tolerance  to  all  religions  naturally  irritated 
our  people  and  led  to  the  introduction  of  a  resolution 
in  the  House  of  Representatives,  during  my  adminis- 
tration, calling  upon  the  President  to  annul  the  treaty 
in  accordance  with  its  terms  by  a  year's  notice,  on  the 
ground  that  Russia  had  flagrantly  violated  its  obliga- 
tions. The  resolution  was  drawn  in  language  which 
would  have  given  diplomatic  offense  to  Russia,  as 
doubtless  its  framers  intended  to  do.  With  the  re- 
sponsibility of  maintaining  as  friendly  relations  as  pos- 
sible with  all  the  world,  it  seemed  to  me  that  if  the 


treaty  had  to  be  abrogated,  it  ought  to  be  done  as 
politely  as  possible,  with  the  hope  of  negotiating  a 
treaty  less  subject  to  dispute,  and  giving  more  satis- 
factory result.  With  the  knowledge  that  the  resolution 
was  sure  to  pass  the  Senate,  I  took  the  step  of  annulling 
the  treaty  myself  and  giving  a  year's  notice  to  Russia  of 
the  annulment  in  proper  and  courteous  expressions,  on 
the  ground  that  we  had  differed  so  radically  as  to  its 
construction  and  the  treaty  was  so  old  that  it  would  be 
wiser  to  make  a  new  treaty  more  definite  and  satis- 
factory. I  sent  notice  of  this  annulment  at  once  to  the 
Senate,  and  in  this  way  succeeded  in  having  the  Senate 
substitute  a  resolution  approving  my  action  for  the 
resolution  which  came  over  from  the  House.  The 
House  was  thus  induced  to  approve  my  action  and 
the  incident  was  closed  for  the  time.  I  regret  to  say 
that  no  new  treaty  has  yet  been  made  and  our  relations 
with  Russia  in  many  regards  are  defined  only  by  the 
rules  of  international  law. 

The  Supreme  Court  recognizes  the  power  of  the 
President  to  decide  the  question  of  our  foreign  relations 
which  it  calls  political,  and  holds  itself  bound  by  the 
President's  action.  Early  in  our  history  the  question 
arose  whether  the  Falkland  Islands  belonged  to  Buenos 
Aires,  so  that  Buenos  Aires  might  pass  a  law  punishing 
the  killing  of  seals  in  those  Islands.  Our  State  Depart- 
ment, in  correspondence  with  the  government  of  Buenos 
Aires,  had  refused  to  recognize  its  lawful  jurisdiction 
there.  In  a  maritime  insurance  case,  the  issue  was 
whether  a  vessel  lost  through  seizure  by  the  authorities 
of  Buenos  Aires  for  violation  of  its  sealing  laws  was  a 
loss  within  a  marine  insurance  policy,  or  was  excepted 


because  the  master  had  violated  the  statutes  of  a 
lawful  government.  The  Supreme  Court  held  that  it 
would  follow  the  decision  of  the  President  as  the  political 
department  having  the  authority  to  decide  such  an 
issue.  The  Court  reached  a  similar  conclusion  in 
another  seal  case  where  we  were  on  the  other  side.  Mr. 
Elaine,  as  Secretary  of  State  for  Mr.  Harrison,  had 
claimed  in  a  correspondence  with  Lord  Salisbury  that 
through  the  grant  of  Alaska  and  the  adjoining  waters 
we  were  given  jurisdiction  over  the  open  Bering  Sea 
to  arrest  Canadian  sealers  engaged  in  pelagic  sealing 
contrary  to  the  laws  of  the  United  States.  Mr.  Elaine's 
claim  was  that  Russia  had  asserted  territorial  juris- 
diction over  these  waters,  and  that  this  jurisdiction  had 
been  acquiesced  in  by  the  world.  The  Supreme  Court 
intimated  in  its  opinion  that  this  was  a  political  ques- 
tion, and  that  it  would  not  undertake  to  discuss  the 
merits  of  Mr.  Elaine's  contentions,  because  it  was 
bound  to  follow  and  respect  the  attitude  of  the  Presi- 
dent and  Secretary  of  State  in  deciding  such  a  question. 
Of  course  the  decision  of  Congress  or  the  treaty  mak- 
ing power  upon  such  an  issue  would  be  binding  upon 
the  Courts,  but  in  the  absence  of  the  decision  of  either 
the  action  of  the  President  is  conclusive  with  the  Courts. 
The  last  power  of  the  President  which  I  shall  consider 
is  the  power  of  pardon.  This  is  a  wide  power,  and 
.  enables  the  President  to  pardon  any  one  guilty  of  an 
offense  against  the  United  States  before  indictment, 
after  indictment  and  before  conviction,  or  after  con- 
viction. He  need  not  name  the  persons  to  be  pardoned 
if  he  pardons  a  class  and  makes  provision  by  which  the 
persons  affected  shall  establish  their  membership  in  that 


class.  The  pardon  under  such  circumstances  is  called 
an  amnesty.  He  is  expressly  given  power  to  grant 
reprieves,  which  means  only  a  suspension  of  the  execu- 
tion of  a  sentence  for  one  purpose  or  another.  The 
Supreme  Court  said  in  one  case  that  a  pardon  reaches 
both  the  punishment  prescribed  for  the  offense  and  the 
guilt  of  the  offender,  and  when  the  pardon  is  full,  it 
relieves  the  punishment  and  blots  out  of  existence  the 
guilt,  so  that  in  the  eye  of  the  law  the  offender  is  as 
innocent  as  if  he  never  had  committed  the  offense. 
This  is  rather  a  strong  statement  as  some  later  cases 
show.  It  is  difficult  to  clothe  Omnipotence  with  such 
a  power. 

Congress  may  not  restrict  the  President  in  the  exercise 
of  his  power  of  pardon.  There  was  a  good  deal  of 
conflict  between  the  Executive  and  Congress  in  respect 
to  amnesty  proclamations  issued  by  President  Johnson. 
Congress  was  loath  to  allow  the  full  constitutional  effect 
which  such  pardons  required  in  respect  to  the  status 
of  those  who  had  been  guilty  of  treason  against  the 
government  and  who  were  restored  to  the  enjoyment  of 
their  full  civil  rights,  as  if  the  treason  had  never  been 
committed.  In  the  case  of  Mr.  Garland,  who  was 
afterwards  a  Senator  from  Arkansas,  and  Attorney- 
General  of  the  United  States,  the  Supreme  Court  had 
to  examine  the  validity  of  a  statute,  which  required 
that  every  attorney  practising  law  in  the  Federal  court 
must  take  an  oath  that  he  never  had  borne  arms  against 
the  United  States.  This  act  practically  excluded  all 
lawyers  who  had  served  the  Confederacy  from  the 
pursuit  of  their  profession.  The  Court  held  the  act 
invalid  because  it  was  in  effect  a  bill  of  attainder, 


and  also  because  it  defeated  the  President's  amnesty 
of  which  Mr.  Garland  had  taken  advantage.  A  very 
nice  line  of  distinction  is  presented  by  another  de- 
cision of  the  Supreme  Court,  in  which  the  validity  of 
a  law  of  the  state  of  New  York  was  in  question. 
The  law  prevented  men  who  had  been  convicted  of 
felonies  from  receiving  certificates  permitting  them  to 
practise  medicine.  In  that  case,  the  Court  held  that 
the  question  of  fitness  was  one  of  fact  and  that  the 
legislature  had  the  right  to  make  rules  of  eligibility  to 
protect  the  public  against  immorality  in  the  practice 
of  the  profession,  and  that  it  could  not  say  that  such 
a  rule  of  ineligibility  was  not  reasonable  in  preserving 
a  proper  moral  standard  in  physicians.  It  could  not 
regard  it  as  additional  punishment. 

There  is  a  question  whether  the  President's  power  of 
pardons  extends  to  the  case  of  one  sentenced  to  imprison- 
ment for  contempt  by  a  Federal  Court.  It  is  objected 
that  this  power  of  contempt  is  used  by  the  court  to  enforce 
its  judgments,  and  that  if  the  President  could  intervene 
and  paralyze  the  instrument  in  the  hands  of  the  Court 
to  enforce  its  judgment,  he  would  not  be  pardoning 
a  crime  but  would  be  obstructing  the  Court  in  its 
administration  of  justice.  I  think  it  is  possible  to 
smooth  out  this  difficulty  by  pointing  out  a  distinction 
between  the  two  ways  in  which  a  court  exercises  its 
power  of  contempt.  Where  a  court  is  seeking  to 
enforce  a  decree  or  a  judgment  against  a  contumacious 
party  and  puts  him  in  prison  for  the  purpose  of  compel- 
ling him  to  comply  with  the  judgment  or  decree,  then  I 
do  not  think  the  President  could  pardon  a  man  or  relieve 
him  from  the  effect  of  such  an  order  because  he  would 


really  be  obstructing  the  cause  of  justice.  But  where  the 
court  is  merely  vindicating  its  own  authority  by  punishing 
a  man  for  a  past  contempt,  and  where  an  imprisonment 
is  not  a  continuing  duress  for  the  purpose  of  compelling 
obedience,  it  seems  to  me  that  the  punishment  inflicted 
is  for  an  offense  against  the  United  States,  to  wit,  a 
defiance  of  its  judicial  authority,  and  therefore  that  it 
does  come  within  the  range  of  the  power  of  pardon  by 
the  President. 

The  duty  involved  in  the  pardoning  power  is  a  most 
difficult  one  to  perform,  because  it  is  so  completely 
within  the  discretion  of  the  Executive  and  is  lacking  so 
in  rules  or  limitations  of  its  exercise.  The  only  rule 
he  can  follow  is  that  he  shall  not  exercise  it  against  the 
public  interest.  The  guilt  of  the  man  with  whose  case 
he  is  dealing  is  usually  admitted,  and  even  if  it  is  not,  the 
judgment  of  the  court  settles  that  fact  in  all  but  few 
cases.  The  question  which  the  President  has  to  decide 
is  whether  under  peculiar  circumstances  of  hardship 
he  can  exercise  clemency  without  destroying  the  useful 
effect  of  punishment  in  deterring  others  from  committing 
crimes.  The  frequent  result  of  human  punishment  is 
that  those  near  to  the  criminal  or  dependent  upon  him 
suffer  more  than  he  does,  and  their  pitiable  condition 
often  furnishes  a  plea  for  mitigation  of  the  penalty  to  the 
offender.  Those  who  plead  for  pardon  are  generally 
entirely  blind  to  the  right  of  society  to  be  protected 
from  criminals  and  to  have  those  of  criminal  tendencies 
deterred  from  yielding  to  them  by  fear  of  punishment. 
If  the  fear  of  punishment  is  lessened  by  Executive 
clemency  to  those  convicted,  the  benefit  of  punishment 
will  be  largely  lost.  It  is  a  case  where  organized  emo- 


tion  and  sentiment  are  likely  to  mislead,  to  the  public 
detriment.     It  seems  to  me  that  the  people  of  Nuiv 

and  of  the  country  generally  are  in  danger  of  being  led 
by  an  unwise  sentiment  into  a  treatment  of  convicted 
criminals  that  will  neither  impart  to  the  criminals  the 
proper  lesson  from  punishment,  nor  will  keep  before 
those  likely  to  become  criminals  the  fear  of  the  law  as  a 
deterrent.  It  is  of  course  wise  and  humane  that  state 
prisons  and  penitentiaries  should  be  made  as  health- 
ful as  possible  for  the  confinement  of  those  sentenced 
to  spend  a  term  within  their  walls,  and  it  is  wise  to 
provide  healthful  labor  and  primary  and  industrial 
education.  The  impulse  of  many  prison  reformers, 
however,  to  treat  the  prisoners  as  victims  and  to  make 
society  the  scapegoat  for  all  their  sins  and  vicious  pro- 
pensities and  crimes  is  a  wrong  one,  which  if  yielded  to 
will  certainly  lead  to  bad  results  and  ultimately  to  a 
retracing  of  steps  toward  greater  rigidity  and  severity. 
The  theory  that  by  treating  criminals  as  if  they  had  no 
criminal  tendencies  you  can  eliminate  such  tendencies  is 
one  that  may  work  in  some  cases,  but  the  exceptions  will 
be  so  many  as  to  make  the  policy  ultimately  ridiculous, 
and,  worse  than  ridiculous,  most  harmful.  A  man  who 
violates  the  law  in  such  a  way  as  to  call  for  a  sentence 
and  imprisonment  is  punished  for  his  violation,  and  he 
ought  to  be  punished.  He  need  not  be,  and  ought  not 
to  be,  subjected  to  cruel  or  unwholesome  surroundings, 
but  he  should  be  made  to  feel  that  he  is  suffering  punish- 
ment for  that  which  he  has  done.  He  may  be  given  an 
opportunity  to  reform,  and,  so  far  as  it  is  possible,  be 
encouraged  to  change  his  ways,  but  if  he  is  to  be  coddled 
and  to  receive  the  impression  that  he  is  a  victim  instead 


of  being  a  criminal,  the  enforcement  of  our  criminal  law 
will  be  a  failure. 

The  President  has  to  keep  these  distinctions  in  mind 
in  the  exercise  of  Executive  clemency,  and  must  stifle 
his  emotions  of  pity  for  the  family  and  dependents  of 
the  criminal  in  the  consideration  of  the  character  of 
the  offense  and  the  necessity  for  having  it  plainly 
understood  that  such  an  offender  is  not  to  escape  with 

There  has  been  a  custom  in  the  Presidential  office  of 
pardoning  men  who  are  supposed  to  be  near  their  death 
to  enable  them  to  go  home  and  die  with  their  families. 
The  difficulty  in  such  cases  is  in  being  certain  that  death 
is  near.  I  had  two  notable  cases  in  which  I  was  assured 
by  the  prison  authorities  that  death  was  imminent,  and 
that  if  they  were  to  be  released  at  all,  to  die,  they  ought 
to  be  released  at  once.  I  instituted  as  thorough  an  in- 
vestigation as  I  could  through  the  army  and  navy  sur- 
geons in  the  employ  of  the  government  and  reached  the 
conclusion  from  the  evidence  submitted  that  death 
was  certain.  I  pardoned  them  both.  One  man  died 
and  kept  his  contract.  The  other  recovered  at  once,  and 
seems  to  be  as  healthy  and  active  as  any  one  I  know.  I 
had  a  suspicion  of  fraud  in  the  latter  case  and  instituted 
an  investigation  to  see  whether  I  had  been  deceived 
by  the  friends  of  the  prisoner  or  the  prisoner  himself. 
I  was  not  able  to  find  the  evidence  of  such  fraud. 

It  has  been  suggested  to  me  that  if  the  man  had  been 
guilty  of  fraud  in  inducing  me  to  pardon  him,  I  might 
have  set  aside  the  pardon  as  void  and  directed  the 
arrest  of  the  former  convict.  I  do  not  think  that  in 
such  a  case  a  pardon  could  be  set  aside.  I  do  not 


think  either  I  or  a  court  would  have  had  the  authority 
to  issue  a  warrant  for  the  arrest  of  the  man  and  to 
restore  him  to  prison.  It  seems  to  me  it  would  be  like 
a  case  of  a  man  acquitted  by  a  jury  which  was  bribed 
by  him.  He  might  be  thereafter  convicted  of  bribery, 
but  he  could  not  be  convicted  of  the  crime  of  which 
the  verdict  of  the  jury  acquitted  him. 

There  are  curious  notions  about  pardons  in  the  minds 
of  some  people.  When  Mr.  Knox  was  Attorney-Gen- 
eral, a  Congressman  came  to  him  and  said  that  he 
would  like  to  have  a  man  pardoned  who  had  been  sent 
to  the  penitentiary  for  robbing  a  post  office.  He  said 
that  the  convict  had  been  a  great  supporter  of  his  and 
he  would  like  to  get  him  out.  Mr.  Knox  asked  him 
what  the  ground  for  pardon  was,  and  he  said  he  was  a 
good  fellow  and  had  been  his  friend.  Knox  said  that 
was  no  reason.  "But, "said  the  Congressman,  "I  un- 
derstand that  each  Congressman  has  a  right  to  two  par- 
dons during  his  term  and  I  want  this  to  be  one  of  mine." 



I  HAVE  considered,  at  possibly  too  great  length,  the 
chief  powers  of  the  Executive  under  the  Federal  Con- 
stitution. In  theory,  the  Executive  power  and  the 
Legislative  power  are  independent  and  separate,  but  it 
is  not  always  easy  to  draw  the  line  and  to  say  where 
Legislative  control  and  direction  to  the  Executive  must 
cease,  and  where  his  independent  discretion  begins. 
In  theory,  all  the  Executive  officers  appointed  by  the 
President  directly  or  indirectly  are  his  subordinates, 
and  yet  Congress  can  undoubtedly  pass  laws  definitely 
limiting  their  discretion  and  commanding  a  certain 
course  by  them  which  it  is  not  within  the  power  of  the 
Executive  to  vary.  Fixing  the  method  in  which  Execu- 
tive power  shall  be  exercised  is  perhaps  one  of  the  chief 
functions  of  Congress.  Indeed,  by  its  legislation,  it 
often  creates  a  duty  in  the  Executive  which  did  not 
before  exist.  Then  in  prescribing  how  that  duty  is  to 
be  carried  out,  it  imposes  restrictions  that  the  Executive 
is  bound  to  observe. 

Congress  may  repose  discretion  in  appointees  of  the 
President,  which  the  President  may  not  himself  control. 
The  instance  I  have  already  given  is  one  of  these,  in 
which  the  Comptroller  of  the  Treasury  has  independent 
quasi- judicial  authority  to  pass  on  the  question  of 
what  warrants  are  authorized  by  appropriation  acts 
to  be  drawn  by  him  on  the  funds  of  the  Treasury. 



The  President  can  appoint  him  and  remove  him,  but 
he  may  not  control  him  in  his  construction  of  appro- 
priation acts  and  his  signing,  or  withholding  his  signa- 
ture from  warrants  in  accordance  with  that  construc- 

So,  too,  as  between  a  court  directing  the  action  of  a 
marshal  and  a  contrary  order  of  the  President,  the 
marshal  is  bound  by  law  to  follow  the  court's  direction. 
Indeed,  the  court  may  compel  him  to  do  so  by  punishing 
him  for  contempt  if  he  refuses  to  obey  the  order.  If 
the  marshal  is  obstructed  in  the  performance  of  his 
duty,  however,  and  he  or  the  court  calls  Upon  the 
President  to  send  the  army  to  overcome  the  obstruc- 
tion, the  President  cannot  be  compelled  to  act. 

Two  principles,  limiting  Congressional  interference 
with  the  Executive  powers,  are  clear.  First,  Congress 
may  not  exercise  any  of  the  powers  vested  in  the  Presi- 
dent, and  second,  it  may  not  prevent  or  obstruct  the 
use  of  means  given  him  by  the  Constitution  for  the 
exercise  of  those  powers. 

In  the  matter  of  appointments,  Presidents  have  been 
quick  to  resent  encroachments  by  Congress.  The  power 
of  appointment  is  not  in  Congress.  In  the  case  of  Fitz 
John  Porter,  President  Arthur  made  a  precedent  which 
prevails.  Porter  had  been  sentenced  by  court-martial 
for  his  alleged  misconduct  in  failing  to  support  Pope  in 
the  second  battle  of  Bull  Run.  Twenty  years  after  the 
court-martial,  when  Porter's  friends  were  in  the  major- 
ity of  Congress,  they  passed  an  act  authorizing  the 
President  to  appoint  Porter  a  colonel  in  the  regular 
army,  and  to  place  him  on  the  retired  list.  President 
Arthur  vetoed  the  bill,  and  one  of  the  grounds  he  gave 


was  that  it  was  an  encroachment  on  the  Executive 
power  to  make  the  creation  of  an  office  conditioned  on 
the  appointment  of  a  named  individual.  When  General 
Grant  was  dying  at  Mt.  McGregor,  Congress,  in  re- 
sponse to  a  throb  of  sympathy  and  gratitude  through- 
out the  nation,  wished  to  have  him  put  on  the  retired 
list  as  a  full  general,  but  when  the  act  was  drafted  and 
passed,  it  did  not  mention  General  Grant's  name.  It 
merely  provided  that  from  among  the  living  Command- 
ing Generals,  the  President  might  nominate  one,  and 
with  the  consent  of  the  Senate  appoint  him  to  be  a 
general  on  the  retired  list,  with  full  pay.  The  act  was 
passed,  General  Grant  was  appointed  and  confirmed 
to  be  a  general,  with  full  salary,  and  the  last  three 
months  of  his  life  were  cheered  by  this  evidence  of  the 
continued  gratitude  of  his  countrymen. 

While  Congress  may  not  exercise  the  power  of 
appointment,  it  may  certainly  impose  rules  of  eligibility 
within  which  appointees  are  to  be  selected.  The  extent 
of  the  right  of  the  President  to  make  appointments, 
without  Congressional  control  or  limitation,  has  been 
very  recently  mooted.  An  army  officer,  who  was  under 
the  statute  regulating  promotion  in  the  army  entitled 
to  a  promotion  to  a  vacancy,  was  not  a  man  whom 
the  President  thought  ought  to  be  promoted,  although 
he  was  not  subject  to  removal  by  a  court-martial.  He 
therefore  passed  him  over  and  nominated  the  next  offi- 
cer hi  rank  to  the  vacancy.  The  then  Attorney-General 
rendered  an  opinion  that  the  President  could  not  be 
limited  in  his  appointment  of  army  officers  by  rules  as 
to  promotion  in  the  army  contained  in  the  army  organi- 
zation act.  I  am  not  aware  of  what  action  the  Senate 


has  taken.  Attempt  was  made  by  some  proceeding  in 
court  to  prevent  the  passing  over  the  officer  first 
entitled,  but  the  jurisdiction  of  the  court  to  control 
the  Executive  evidently  could  not  be  maintained.  If 
Congress  may  not  provide  by  law  a  rule  of  eligibility 
for  promotion  in  the  army  or  navy,  or  if  the  President 
may  refuse  to  conform  to  such  a  law,  it  is  difficult  to  see 
how  Congress  can  exercise  the  power  which  it  is  given 
by  the  Constitution  to  raise  and  support  armies  and 
make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces.  Rules  of  eligibility  for  promo- 
tion would  seem  to  be  rules  for  the  regulation  of  army 
forces.  No  court  and  no  other  authority,  however,  can 
compel  the  President  to  make  a  nomination,  and  the 
only  method  of  preventing  his  appointing  someone  other 
than  the  one  specified  by  law  is  for  the  Senate  to  refuse 
to  confirm  him,  or  for  Congress  to  withhold  an  appro- 
priation of  his  salary,  or  for  the  Comptroller  of  the 
Treasury  to  decline  to  draw  a  warrant  for  his  salary  on 
the  ground  of  his  ineligibility  under  the  law.  The  ques- 
tion of  his  salary  then  might  be  referred  to  the  Court  of 
Claims  through  a  suit  by  him,  and  in  that  way  the 
judgment  of  the  Court  might  be  invoked  upon  the 
validity  of  the  appointment.  This,  however,  is  one  of 
the  numerous  instances  in  which  for  practical  purposes 
the  Constitution  is  finally  construed  by  the  President 
and  the  Senate. 

The  President  is  made  Commander-in-Chief  of  the 
army  and  navy  by  the  Constitution  evidently  for  the 
purpose  of  enabling  him  to  defend  the  country  against 
invasion,  to  suppress  insurrection  and  to  take  care 
that  the  laws  be  faithfully  executed.  If  Congress 


were  to  attempt  to  prevent  his  use  of  the  army 
for  any  of  these  purposes,  the  action  would  be  void. 
During  the  existence  of  the  Federal  election  laws,  there 
was  a  provision  enacted  by  Congress  forbidding  marshals 
to  call  upon  the  army  as  a  posse  comitatus  to  assist  them 
in  the  enforcement  of  the  election  laws,  but  that  was 
not  interfering  with  the  President's  power  as  Com- 
mander-in-Chief .  Under  another  section  of  the  statute, 
the  President  has  the  power  to  call  upon  the  army,  after 
proclamation,  to  resist  forcible  obstruction  of  any 
Federal  laws.  In  other  words,  he  is  to  maintain  the 
peace  of  the  United  States.  I  think  he  would  have  this 
power  under  the  Constitution  even  if  Congress  had  not 
given  him  express  authority  to  this  end.  Again,  in  the 
carrying  on  of  war  as  Commander-in-Chief,  it  is  he 
who  is  to  determine  the  movements  of  the  army  and  of 
the  navy.  Congress  could  not  take  away  from  him  that 
discretion  and  place  it  beyond  his  control  in  any  of  his 
subordinates,  nor  could  they  themselves,  as  the  people 
of  Athens  attempted  to,  carry  on  campaigns  by  votes 
in  the  market-place. 

The  President  is  required  by  the  Constitution  from 
time  to  time  to  give  to  Congress  information  on  the 
state  of  the  Union,  and  to  recommend  for  its  con- 
sideration such  measures  as  he  shall  judge  necessary 
and  expedient,  but  this  does  not  enable  Congress  or 
either  House  of  Congress  to  elicit  from  him  confidential 
information  which  he  has  acquired  for  the  purpose  of 
enabling  him  to  discharge  his  constitutional  duties, 
if  he  does  not  deem  the  disclosure  of  such  information 
prudent  or  in  the  public  interest.  In  the  controversy 
between  Washington  and  Congress,  over  the  perform- 


ance  of  the  Jay  Treaty  by  payment  of  money,  Congress 
attempted  to  secure  from  Washington  the  correspon- 
dence had  between  him  and  Chief  Justice  Jay,  and  other 
correspondence  about  the  treaty  on  the  files  of  the  State 
Department.  Washington  maintained  that  the  House 
of  Representatives,  which  was  seeking  the  informa- 
tion, was  not  part  of  the  treaty-making  power  and 
therefore  had  no  right  to  secure  from  him  confiden- 
tial information  in  respect  to  the  making  of  the 
treaty  which  he  did  not  deem  wise  to  make  public. 
He  therefore  declined  to  furnish  the  correspondence, 
although  the  House  of  Representatives  adopted  reso- 
lutions to  protest  against  his  action.  The  House  did, 
however,  appropriate  the  money  stipulated  for  in  the 

In  the  last  days  of  Grant's  administration,  when 
the  House  was  Democratic,  and  when  President  Grant 
was  being  criticized  for  spending  some  of  the  hot  months 
at  Long  Branch,  the  House  of  Representatives  sent 
him  a  resolution  asking  for  information  as  to  how  many 
Executive  acts  were  performed  at  other  places  than 
the  seat  of  government.  The  inquiry  evidently  aroused 
the  General,  for  his  declination  to  furnish  the  infor- 
mation is  quite  spirited.  He  declined  to  admit  that 
under  the  Constitution  he  was  obliged  to  perform 
official  acts  at  the  seat  of  government,  and  proceeded  to 
show  by  historical  reference  that  many  such  acts  by 
former  Presidents  had  been  performed  at  other  places  in 
the  United  States.  He  filed  a  statement  of  the  time 
spent  at  the  seat  of  government  by  each  President,  from 
which  it  appeared  that  the  President  who  was  most 
often  absent  from  Washington  and  the  seat  of  govern- 


ment  was  Thomas  Jefferson,  a  full  quarter  of  whose  time 
was  spent  at  Monticello.  This  seemed  a  very  complete 
answer  to  the  Democratic  majority  of  the  House  which 
in  passing  the  resolution  were  seeking  to  make  political 
capital,  for  they  could  hardly  criticize  General  Grant 
for  doing  that  which  Mr.  Jefferson,  the  founder  of 
the  Democratic  Party,  had  done  with  even  more  free- 
dom. A  visit  to  his  beautiful  country  seat  at  Monti- 
cello  and  a  knowledge  of  the  very  uncomfortable 
quarters  that  he  had  at  the  White  House  in  the  be- 
ginnings of  our  national  capital,  may  explain  why 
Jefferson  went  to  Monticello  whenever  he  could  get 
away  from  Washington.  More  than  this,  he  was  a 
great  letter  writer,  and  he  could  write  letters  as  well 
from  Monticello  as  he  could  from  the  White  House. 
I  am  glad  to  say  that  a  more  reasonable  view  is  now 
taken  of  the  right  of  the  President  to  enjoy  a  vacation 
at  the  seashore  or  in  the  mountains,  whenever  he  can 
be  spared  from  Washington,  and  it  is  most  satisfactory 
to  those  of  us  who  have  enjoyed  some  relief  of  this 
kind  to  know  that  we  have  Jefferson's  conduct  to 
justify  us. 

Mr.  Jefferson  set  another  example  which  has  con- 
stituted a  precedent  never  departed  from.  In  the  trial 
of  Aaron  Burr  for  treason,  Chief  Justice  Marshall  pre- 
sided in  Richmond,  and  at  the  instance  of  the  parties 
to  the  suit,  he  directed  a  subpoena  duces  tecum  to  be 
served  on  President  Jefferson,  requiring  him  to  bring 
with  him  papers  supposed  to  bear  on  the  issue.  Mr. 
Jefferson  wrote  a  letter  to  the  District  Attorney  declin- 
ing to  respond  to  the  subpoena,  and  gave  as  his  reason 
for  doing  so  that  he  could  not  be  detained  as  a  witness 


in  a  case,  because  it  would  interfere  with  his  public 
duties.  To  this  Chief  Justice  Marshall  responded  that 
apparently  all  his  tune  was  not  taken  up  with  govern- 
mental duties,  which  Mr.  Jefferson  construed  to  mean 
a  reference  to  the  fact  that  he  spent  a  great  deal  of  his 
time  at  Monticello,  and  an  intimation  that  he  might 
just  as  well  come  to  Richmond  and  testify  as  to  go  to 
Monticello  and  enjoy  his  leisure.  Mr.  Jefferson  re- 
sented the  intimation  with  all  the  emphasis  and  ve- 
hemence that  Chief  Justice  Marshall's  rulings  in  politi- 
cal and  personal  matters  usually  evoked.  No  other 
President,  so  far  as  I  know,  has  been  subpoenaed  to 
appear  in  court  during  his  term.  General  Grant  did 
testify  in  the  criminal  case  brought  against  Mr.  Bab- 
cock,  his  Secretary,  in  behalf  of  the  defendant.  The 
deposition  was  given  in  the  White  House  and  was 
taken  before  Chief  Justice  Waite,  and  in  the  presence  of 
the  Attorney-General. 

The  Supreme  Court  seems  to  make  a  broad  distinc- 
tion between  issuing  process  against  the  President  and 
against  his  subordinates  under  laws  requiring  the  spe- 
cific performance  of  a  definite  act.  I  cannot  think  that 
the  Court  would  ever  issue  a  mandamus  to  compel  the 
President  to  perform  even  an  act  purely  ministerial, 
though  it  has  often  issued  such  a  writ  against  one  of 
his  subordinates.  The  Supreme  Court  has  a  number 
of  tunes  intimated  that  the  President's  office  is  of  such 
a  high  character,  that  officially  he  is  beyond  the  com- 
pulsory processes  of  the  Court.  Thus  in  the  case  of 
Mississippi  against  Johnson,  where  it  was  sought  by 
the  state  of  Mississippi  to  enjoin  President  Johnson 
from  carrying  out  the  reconstruction  acts,  on  the 


ground  that  they  were  unconstitutional,  the  Court 
refused  to  issue  the  writ  on  two  grounds,  first  that  it 
did  not  have  the  power  to  enforce  a  writ  of  injunction 
against  the  President,  who  might  decline  to  obey  its 
writ,  and  second  on  the  ground  that  the  unconstitu- 
tionally of  such  an  act  directing  an  executive  officer 
with  respect  to  the  government  of  a  state  was  a  political 
question  which  it  could  not  control,  but  which  must 
be  decided  by  the  executive  to  whose  discretion  the 
enforcement  of  the  act  was  entrusted. 

As  already  said,  the  court  has  always  fully  conceded  its 
duty  to  recognize,  as  binding  upon  it,  the  political  powers 
exercised  by  the  Executive  and  Legislative  departments 
of  the  government  under  the  Constitution.  It  is  not 
always  easy  to  say  what  is  a  political  issue.  Possibly 
the  latest  case  of  this  kind  is  the  one  in  which  a  cor- 
poration sought  to  evade  the  payment  of  taxes  in 
Oregon,  on  the  ground  that  the  law  under  which  they 
were  exacted  had  been  passed  by  an  initiative  and  a 
referendum.  It  was  contended  that  an  initiative  and 
referendum  were  inconsistent  with  a  republican  form 
of  government  as  understood  by  the  framers  of  the  Con- 
stitution, and  as  the  United  States  guaranteed  to  each 
state  a  republican  form  of  government,  such  a  method 
of  legislation  must  be  invalid  and  no  taxes  could  be  col- 
lected under  it.  The  Supreme  Court  answered  that  the 
question  whether  a  state  had  a  republican  form  of  gov- 
ernment was  a  political  question  for  Congress  to  settle, 
and  that  as  long  as  Congress  continued  to  recognize 
Oregon  as  a  state,  it  was  not  for  the  Court  to  investi- 
gate the  question.  I  think  myself  that  there  is  no  doubt 
that  the  term  "republican"  in  that  clause  in  the  Consti- 


tution  was  intended  to  distinguish  our  kind  of  govern- 
ment from  a  monarchical  form,  and  that  it  was  not 
intended  to  make  a  distinction  between  what  is  called 
a  republican  form  of  government  and  a  purely  demo- 
cratic or  direct  form  of  popular  government.  Congress 
is  the  authority  to  decide  this  question,  and  it 
has  already  so  decided  it  in  the  cases  of  Oklahoma, 
of  Arizona,  and  of  New  Mexico,  because  the  consti- 
tutions of  those  states  containing  provisions  for  the 
initiative  and  the  referendum  were  before  it  and  were 

An  instance  of  how  the  Legislative  and  Executive 
departments  can  decide  a  constitutional  question  with- 
out the  intervention  of  Congress  may  be  seen  in  the 
appropriation  made  by  one  Congress  during  the 
Spanish- American  War  of  $3,000,000,  to  be  expended 
through  the  War  Department  with  the  approval  of 
the  President  for  contingencies  that  could  not  be  fore- 
seen. This  fund  was  not  completely  expended  for  some 
four  or  five  years  after  the  appropriation.  It  was  a 
very  useful  fund,  as  I  can  testify,  because  it  enabled 
us  in  the  administration  of  the  Philippines  to  meet 
extraordinary  expenses  which  had  to  be  incurred  in  the 
suppression  of  the  insurrection,  in  the  detection  of 
sedition,  in  the  encouragement  of  friendly  relations 
with  the  people  and  in  many  other  ways.  The  point 
was  made  by  one  member  of  the  appropriation  com- 
mittee that  this  was  an  appropriation  in  support  of  the 
army,  and  therefore  must  be  limited  by  the  Constitu- 
tion to  two  years,  but  the  view  of  the  department  and 
of  the  Comptroller  of  the  Treasury  was  that  this  appro- 
priation was  not  included  within  the  limitation  because 


it  was  not  for  the  support  of  the  army  and  was  not 
used  therefor,  although  included  in  the  Army  Appro- 
priation Bill  expended  by  the  War  Department  in  the 
suppression  of  the  disorders  in  the  Philippines  and  in 

Executive  power  is  sometimes  created  by  custom, 
and  so  strong  is  the  influence  of  custom  that  it  seems 
almost  to  amend  the  Constitution.  Take  the  case  of 
Postal  Treaties.  The  Constitution  says  that  treaties 
with  foreign  governments  shall  be  made  by  the  Presi- 
dent, by  and  with  the  advice  of  a  two-thirds  vote  of 
the  Senate ;  and  yet  postal  arrangements  in  the  nature 
of  treaties  had  been  made  between  this  country  and 
the  European  countries  before  the  Constitution  was 
adopted,  and  continued  to  be  made  after  its  adoption, 
without  Senate  action,  until  1844  when  the  one  postal 
treaty  that  was  ever  made  in  that  way  was  signed  by 
the  President  and  consented  to  by  the  Senate.  Almost 
immediately  thereafter  Congress  passed  an  act  which 
authorized  the  Postmaster-General  to  make  treaties 
affecting  postal  matters,  with  postal  authorities  of 
other  countries,  subject  to  the  consent  of  the  President, 
and  this  is  an  exception  grafted  on  to  the  Constitution 
merely  through  Executive  practice.  A  similar  case  is 
that  of  the  remission  of  penalties  incurred  by  steamers 
violating  the  navigation  laws.  Since  the  beginning  of 
the  government,  the  Secretary  of  the  Treasury  has 
exercised  the  power  to  remit  these  penalties  in  proper 
cases.  The  pardoning  power  is  given  by  the  Constitu- 
tion to  the  President,  yet  the  practice  of  one  hundred 
years  was  recognized  by  the  Supreme  Court  and  it 
held  to  be  valid. 


In  a  very  recent  case,  in  which  President  Roosevelt 
had  exercised  the  power  to  withdraw  lands,  which  were 
open  for  settlement  under  an  act  of  Congress,  from  the 
operation  of  the  act,  and  in  which  course  I  had  followed 
him  with  very  considerable  doubt  as  to  my  power,  the 
validity  of  our  action  was  brought  before  the  Supreme 
Court  and  sustained,  on  the  ground  that  the  practice 
of  the  Executive  for  a  great  many  years,  with  the 
acquiescence  of  Congress  in  such  withdrawals,  justified 
the  exercise  of  the  power  and  made  it  legal  as  if  there 
had  been  an  express  act  of  Congress  authorizing  it. 

One  of  the  great  questions  that  the  Executive  has 
had  to  meet  in  the  past  has  been  how  far  he  might 
properly  differ  from  the  Supreme  Court  in  the  con- 
struction of  the  Constitution  in  the  discharge  of  his 
duties.  Jefferson,  in  a  letter  to  Mrs.  John  Adams, 
laid  it  down  with  emphasis  with  reference  to  the  Sedi- 
tion Law,  in  which  he  said  : 

The  Judges,  believing  the  law  constitutional,  had  a  right  to 
pass  a  sentence  of  fine  and  imprisonment,  because  the  power  was 
placed  in  their  hands  by  the  Constitution.  But  the  executive, 
believing  the  law  to  be  unconstitutional,  might  remit  the  execution 
of  it,  because  that  power  has  been  confided  to  them  by  the  Con- 
stitution. That  instrument  meant  that  its  coordinate  branches 
should  be  checks  on  each  other.  But  the  opinion  which  gives  to 
the  Judges  the  right  to  decide  what  laws  are  constitutional,  and 
what  not,  not  only  for  themselves  in  their  own  sphere  of  action, 
but  for  the  legislature  and  executive  also,  in  their  spheres,  would 
make  the  judiciary  a  despotic  branch. 

And  so  Jackson  in  his  message  vetoing  the  renewal  of 
the  charter  to  the  bank  of  the  United  States  in  respect 
to  the  opinion  of  the  Supreme  Court  confirming  the 
constitutionality  of  the  previous  charter,  said  : 


If  the  opinion  of  the  Supreme  Court  covered  the  whole  ground 
of  this  act,  it  ought  not  to  control  the  coordinate  authorities  of 
this  Government.  The  Congress,  the  Executive  and  the  Court 
must  each  for  itself  be  guided  by  its  own  opinion  of  the  Constitu- 
tion. Each  public  officer  who  takes  an  oath  to  support  the  Con- 
stitution swears  that  he  will  support  it  as  he  understands  it,  and 
not  as  it  is  understood  by  others.  It  is  as  much  the  duty  of  the 
House  of  Representatives,  of  the  Senate,  and  of  the  President  to 
decide  upon  the  Constitutionality  of  any  bill  or  resolution  which 
may  be  presented  to  them  for  passage  or  approval  as  it  is  of  the 
Supreme  judges  when  it  may  be  brought  before  them  for  judicial 
decision.  The  opinion  of  the  judges  has  no  more  authority  over 
Congress  than  the  opinion  of  Congress  has  over  the  judges,  and  on 
that  point  the  President  is  independent  of  both.  The  authority 
of  the  Supreme  Court  must  not,  therefore,  be  permitted  to  control 
the  Congress  or  the  Executive  when  acting  in  their  legislative 
capacities,  but  to  have  only  such  influence  as  the  force  of  their 
reasoning  may  deserve. 

Mr.  Lincoln  in  his  reference  to  the  Dred  Scott  case 

I  do  not  forget  the  position  assumed  by  some  that  constitutional 
questions  are  to  be  decided  by  the  Supreme  Court,  nor  do  I  deny 
that  such  decisions  must  be  binding  in  any  case  upon  the  parties 
to  a  suit  as  to  the  object  of  that  suit,  while  they  are  also  entitled 
to  very  high  respect  and  consideration  in  all  parallel  cases  by  all 
other  departments  of  the  Government.  And  while  it  is  obviously 
possible  that  such  decision  may  be  erroneous  in  any  given  case, 
still  the  evil  effect  following  it,  being  limited  to  that  particular  case, 
with  the  chance  that  it  may  be  overruled  and  never  become  a 
precedent  for  other  cases,  can  better  be  borne  than  could  the  evils 
of  a  different  practice.  At  the  same  time,  the  candid  citizen  must 
confess  that  if  the  policy  of  the  Government  upon  vital  questions 
affecting  the  whole  people  is  to  be  irrevocably  fixed  by  decisions 
of  the  Supreme  Court,  the  instant  they  are  made  in  ordinary  litiga- 
tion between  parties  in  personal  actions  the  people  will  have  ceased 
to  be  their  own  rulers,  having  to  that  extent  practically  resigned 


their  government  into  hands  of  that  eminent  tribunal.  Nor  is 
there  in  this  view  any  assault  upon  the  court  or  the  judges.  It  is  a 
duty  from  which  they  may  not  shrink  to  decide  cases  properly 
brought  before  them,  and  it  is  no  fault  of  theirs  if  others  seek  to 
turn  their  decisions  to  political  purposes. 

I  do  not  intend  to  dispute  the  attitude  of  these  dis- 
tinguished men.  Nor  is  it  necessary  to  do  so.  It  is 
sufficient  to  say  that  the  Court  is  a  permanent  body, 
respecting  precedent  and  seeking  consistency  in  its 
decisions,  and  that  therefore  its  view  of  the  Constitu- 
tion, whether  binding  on  the  Executive  and  the  legis- 
lature or  not,  is  likely  ultimately  to  prevail  as  accepted 

While  it  is  important  to  mark  out  the  exclusive  field 
of  jurisdiction  of  each  branch  of  the  government, 
Legislative,  Executive  and  Judicial,  it  should  be  said 
that  in  the  proper  working  of  the  government  there  must 
be  cooperation  of  all  branches,  and  without  a  willing- 
ness of  each  branch  to  perform  its  function,  there  will  fol- 
low a  hopeless  obstruction  to  the  progress  of  the  whole 
government.  Neither  branch  can  compel  the  other  to 
affirmative  action,  and  each  branch  can  greatly  hinder 
the  other  in  the  attainment  of  the  object  of  its  activi- 
ties and  the  exercise  of  its  discretion.  The  judicial 
branch  has  sometimes  been  said  to  be  the  most  power- 
ful branch  of  the  government  because  in  its  decision 
of  litigated  cases  it  is  frequently  called  upon  to  mark 
the  limits  of  the  jurisdiction  of  the  other  two  branches. 
As  already  noted,  by  its  continuity  and  the  consistency 
of  its  decisions,  the  Court  exercises  much  greater 
power  in  this  regard  than  the  other  two  branches. 
But  it  has  no  instruments  to  enforce  its  judgments,  and 


if  the  Executive  fails  to  remove  the  obstructions  that 
may  be  offered  to  the  execution  of  its  decrees  and 
orders,  when  its  authority  is  defied,  then  the  Court  is 
helpless.  It  may  not  directly  summon  the  army  or  the 
navy  to  maintain  the  supremacy  of  the  law  and  order. 
So  if  the  judges  of  the  Court  were  to  refuse  to  perform 
the  judicial  duties  imposed  by  Congress,  the  object  of 
Congress  in  much  of  its  legislation  might  be  defeated. 
And  if  Congress  were  to  refuse  to  levy  the  taxes  and 
make  the  appropriations  which  are  necessary  to  pay 
the  salaries  of  government  officials,  and  to  furnish  the 
equipment  essential  in  the  performance  of  their  duties, 
it  could  paralyze  all  branches  of  the  government.  The 
life  of  the  government,  therefore,  depends  on  the  sense 
of  responsibility  of  each  branch  in  doing  the  part  as- 
signed to  it  in  the  carrying  on  of  the  business  of  the 
people  in  the  government,  and  ultimately  as  the  last 
resource,  we  must  look  to  public  opinion  as  the  moving 
force  to  induce  affirmative  action  and  proper  team 
work.  The  power  over  the  purse  is,  however,  prac- 
tically the  greatest  power,  and  that  Congress  exer- 
cises without  control  by  either  of  the  other  branches. 
Therefore  when  fear  is  expressed  of  the  usurpation  by 
other  branches  and  the  thieving  of  jurisdiction  by  either, 
we  must  keep  in  mind  that  the  legislative  power  to 
withhold  appropriations  is  that  which  in  the  history 
of  constitutional  government  has  always  been  the 
most  powerful  agency  in  the  defense  of  the  people's 

The  true  view  of  the  Executive  functions  is,  as  I  con- 
ceive it,  that  the  President  can  exercise  no  power  which 
cannot  be  fairly  and  reasonably  traced  to  some  specific 


grant  of  power  or  justly  implied  and  included  within  such 
express  grant  as  proper  and  necessary  to  its  exercise. 
Such  specific  grant  must  be  either  in  the  Federal  Con- 
stitution or  in  an  act  of  Congress  passed  in  pursuance 
thereof.  There  is  no  undefined  residuum  of  power 
which  he  can  exercise  because  it  seems  to  him  to  be  in 
the  public  interest,  and  there  is  nothing  in  the  Neagle 
case  and  its  definition  of  a  law  of  the  United  States, 
or  in  other  precedents,  warranting  such  an  inference. 
The  grants  of  Executive  power  are  necessarily  in  general 
terms  in  order  not  to  embarrass  the  Executive  within 
the  field  of  action  plainly  marked  for  him,  but  his 
jurisdiction  must  be  justified  and  vindicated  by  affir- 
mative constitutional  or  statutory  provision,  or  it  does 
not  exist.  There  have  not  been  wanting,  however,  emi- 
nent men  in  high  public  office  holding  a  different 
view  and  who  have  insisted  upon  the  necessity  for  an 
undefined  residuum  of  Executive  power  in  the  public 
interest.  They  have  not  been  confined  to  the  present 
generation.  We  may  learn  this  from  the  complaint  of 
a  Virginia  statesman,  Abel  P.  Upshur,  a  strict  construc- 
tionist  of  the  old  school,  who  succeeded  Daniel  Webster 
as  Secretary  of  State  under  President  Tyler.  He  was 
aroused  by  Story's  commentaries  on  the  Constitution 
to  write  a  monograph  answering  and  criticizing  them, 
and  in  the  course  of  this  he  comments  as  follows  on 
the  Executive  power  under  the  Constitution : 

The  most  defective  part  of  the  Constitution  beyond  all  ques- 
tion, is  that  which  related  to  the  Executive  Department.  It  is 
impossible  to  read  that  instrument,  without  being  struck  with  the 
loose  and  unguarded  terms  in  which  the  powers  and  duties  of  the 
President  are  pointed  out.  So  far  as  the  legislature  is  concerned, 


the  limitations  of  the  Constitution,  are,  perhaps,  as  precise  and 
strict  as  they  could  safely  have  been  made ;  but  in  regard  to  the 
Executive,  the  Convention  appears  to  have  studiously  selected 
such  loose  and  general  expressions,  as  would  enable  the  President, 
by  implication  and  construction  either  to  neglect  his  duties  or  to 
enlarge  his  powers.  We  have  heard  it  gravely  asserted  in  Congress 
that  whatever  power  is  neither  legislative  nor  judiciary,  is  of  course 
executive,  and,  as  such,  belongs  to  the  President  under  the  Constitution. 
How  far  a  majority  of  that  body  would  have  sustained  a  doctrine 
so  monstrous,  and  so  utterly  at  war  with  the  whole  genius  of  our 
government,  it  is  impossible  to  say,  but  this,  at  least,  we  know, 
that  it  met  with  no  rebuke  from  those  who  supported  the  particular' 
act  of  Executive  power,  in  defense  of  which  it  was  urged.  Be  this 
as  it  may,  it  is  a  reproach  to  the  Constitution  that  the  Executive 
trust  is  so  ill-defined,  as  to  leave  any  plausible  pretense  even  to  the 
insane  zeal  of  party  devotion,  for  attributing  to  the  President  of 
the  United  States  the  powers  of  a  despot ;  powers  which  are  wholly 
unknown  in  any  limited  monarchy  in  the  world. 

The  view  that  he  takes  as  a  result  of  the  loose  lan- 
guage defining  the  Executive  powers  seems  exaggerated. 
But  one  must  agree  with  him  in  his  condemnation  of  the 
view  of  the  Executive  power  which  he  says  was  ad- 
vanced in  Congress.  In  recent  years  there  has  been 
put  forward  a  similar  view  by  executive  officials  and 
to  some  extent  acted  on.  Men  who  are  not  such  strict 
constructionists  of  the  Constitution  as  Mr.  Upshur 
may  well  feel  real  concern  if  such  views  are  to  receive 
the  general  acquiescence.  Mr.  Garfield,  when  Secre- 
tary of  the  Interior,  under  Mr.  Roosevelt,  in  his  final 
report  to  Congress  in  reference  to  the  power  of  the 
Executive  over  the  public  domain,  said : 

Full  power  under  the  Constitution  was  vested  in  the  Executive 
Branch  of  the  Government  and  the  extent  to  which  that  power 
may  be  exercised  is  governed  wholly  by  the  discretion  of  the  Execu- 


tive  unless  any  specific  act  has  been  prohibited  either  by  the  Con- 
stitution or  by  legislation. 

In  pursuance  of  this  principle,  Mr.  Garfield,  under 
an  act  for  the  reclamation  of  arid  land  by  irrigation, 
which  authorized  him  to  make  contracts  for  irrigation 
works  and  incur  liability  equal  to  the  amount  on  de- 
posit in  the  Reclamation  Fund,  made  contracts  with 
associations  of  settlers  by  which  it  was  agreed  that  if 
these  settlers  would  advance  money  and  work,  they 
might  receive  certificates  from  the  government  engi- 
neers of  the  labor  and  money  furnished  by  them,  and 
that  such  certificates  might  be  received  in  the  future 
in  the  discharge  of  their  legal  obligations  to  the  govern- 
ment for  water  rent  and  other  things  under  the  statute. 
It  became  necessary  for  the  succeeding  administration 
to  pass  on  the  validity  of  these  government  certificates. 
They  were  held  by  Attorney-General  Wickersham  to 
be  illegal,  on  the  ground  that  no  authority  existed  for 
their  issuance.  He  relied  on  the  Floyd  acceptances  in 
7th  Wallace,  in  which  recovery  was  sought  in  the 
Court  of  Claims  on  commercial  paper  in  the  form  of 
acceptances  signed  by  Mr.  Floyd  when  Secretary  of 
War  and  delivered  to  certain  contractors.  The  Court 
held  that  they  were  void  because  the  Secretary  of  War 
had  no  statutory  authority  to  issue  them.  Mr.  Justice 
Miller,  in  deciding  the  case,  said : 

The  answer  which  at  once  suggests  itself  to  one  familiar  with  the 
structure  of  our  government,  in  which  all  power  is  delegated,  and 
is  defined  by  law,  constitutional  or  statutory,  is,  that  to  one  or  both 
of  these  sources  we  must  resort  in  every  instance.  We  have  no 
officers  in  this  government,  from  the  President  down  to  the  most 
subordinate  agent,  who  does  not  hold  office  under  the  law,  with 


prescribed  duties  and  limited  authority.  And  while  some  of  these, 
as  the  President,  the  Legislature,  and  the  Judiciary,  exercise  powers 
in  some  sense  left  to  the  more  general  definitions  necessarily  incident 
to  fundamental  law  found  in  the  Constitution,  the  larger  portion 
of  them  are  the  creation  of  statutory  law,  with  duties  and  powers 
prescribed  and  limited  by  that  law. 

In  the  light  of  this  view  of  the  Supreme  Court  it  is 
interesting  to  compare  the  language  of  Mr.  Roosevelt 
in  his  "Notes  for  a  Possible  Autobiography"  on  the 
subject  of  " Executive  Powers, "  in  which  he  says : 

The  most  important  factor  in  getting  the  right  spirit  in  my 
Administration,  next  to  insistence  upon  courage,  honesty,  and  a 
genuine  democracy  of  desire  to  serve  the  plain  people,  was  my 
insistence  upon  the  theory  that  the  executive  power  was  limited 
only  by  specific  restrictions  and  prohibitions  appearing  in  the 
Constitution  or  imposed  by  Congress  under  its  constitutional 
powers.  My  view  was  that  every  Executive  officer  and  above 
all  every  Executive  officer  in  high  position  was  a  steward  of  the 
people  bound  actively  and  affirmatively  to  do  all  he  could  for  the 
people  and  not  to  content  himself  with  the  negative  merit  of  keep- 
ing his  talents  undamaged  in  a  napkin.  I  declined  to  adopt  this 
view  that  what  was  imperatively  necessary  for  the  Nation  could 
not  be  done  by  the  President,  unless  he  could  find  some  specific 
authorization  to  do  it.  My  belief  was  that  it  was  not  only  his 
right  but  his  duty  to  do  anything  that  the  needs  of  the  Nation 
demanded  unless  such  action  was  forbidden  by  the  Constitution 
or  by  the  laws.  Under  this  interpretation  of  executive  power  I 
did  and  caused  to  be  done  many  things  not  previously  done  by 
the  President  and  the  heads  of  the  departments.  I  did  not  usurp 
power  but  I  did  greatly  broaden  the  use  of  executive  power.  In 
other  words,  I  acted  for  the  common  well  being  of  all  our  people 
whenever  and  in  whatever  measure  was  necessary,  unless  prevented 
by  direct  constitutional  or  legislative  prohibition. 

I  may  add  that  Mr.  Roosevelt,  by  way  of  illustrating 
his  meaning  as  to  the  differing  usefulness  of  Presidents, 


divides  the  Presidents  into  two  classes,  and  designates 
them  as  "Lincoln  Presidents"  and  " Buchanan  Presi- 
dents/' In  order  more  fully  to  illustrate  his  division 
of  Presidents  on  their  merits,  he  places  himself  in  the 
Lincoln  class  of  Presidents,  and  me  in  the  Buchanan 
class.  The  identification  of  Mr.  Roosevelt  with  Mr. 
Lincoln  might  otherwise  have  escaped  notice,  because 
there  are  many  differences  between  the  two,  presumably 
superficial,  which  would  give  the  impartial  student  of 
history  a  different  impression.  It  suggests  a  story 
which  a  friend  of  mine  told  of  his  little  daughter  Mary. 
As  he  came  walking  home  after  a  business  day,  she  ran 
out  from  the  house  to  greet  him,  all  aglow  with  the 
importance  of  what  she  wished  to  tell  him.  She  said, 
"Papa,  I  am  the  best  scholar  in  the  class."  The 
father's  heart  throbbed  with  pleasure  as  he  inquired, 
"Why,  Mary,  you  surprise  me.  When  did  the  teacher 
tell  you  ?  This  afternoon ?  "  "Oh,  no,"  Mary's  reply 
was,  "the  teacher  didn't  tell  me  —  I  just  noticed  it 

My  judgment  is  that  the  view  of  Mr.  Garfield 
and  Mr.  Roosevelt,  ascribing  an  undefined  residuum 
of  power  to  the  President  is  an  unsafe  doctrine  and 
that  it  might  lead  under  emergencies  to  results  of 
an  arbitrary  character,  doing  irremediable  injustice 
to  private  right.  The  mainspring  of  such  a  view  is 
that  the  Executive  is  charged  with  responsibility  for 
the  welfare  of  all  the  people  in  a  general  way,  that 
he  is  to  play  the  part  of  a  Universal  Providence  and 
set  all  things  right,  and  that  anything  that  in  his  judg- 
ment will  help  the  people  he  ought  to  do,  unless  he  is 
expressly  forbidden  not  to  do  it.  The  wide  field  of 


action  that  this  would  give  to  the  Executive  one  can 
hardly  limit.  It  is  enough  to  say  that  Mr.  Roosevelt 
has  expressly  stated  how  far  he  thought  this  principle 
would  justify  him  in  going  in  respect  to  the  coal 
famine  and  the  Pennsylvania  anthracite  strike  which 
he  did  so  much  useful  work  in  settling.  What  was 
actually  done  was  the  result  of  his  activity,  his  power 
to  influence  public  opinion  and  the  effect  of  the  pres- 
tige of  his  great  office  in  bringing  the  parties  to  the 
controversy,  the  mine  owners  and  the  strikers,  to  a 
legal  settlement  by  arbitration.  No  one  has  a  higher 
admiration  for  the  value  of  what  he  did  there  than  I 
have.  But  if  he  had  failed  in  this,  he  says  he  intended 
to  take  action  on  his  theory  of  the  extent  of  the  execu- 
tive power  already  stated.  I  quote  from  the  same 
book  from  which  his  other  words  are  taken.  Mr. 
Roosevelt  says : 

In  my  own  mind,  I  was  already  planning  effective  action,  but 
it  was  of  a  very  drastic  character,  and  I  did  not  wish  to  take  it 
until  the  failure  of  all  other  expedients  had  rendered  it  neces- 
sary. ...  I  had  definitely  determined  that  somehow  or  other, 
act  I  would,  that  somehow  or  other  the  coal  famine  should  be 
broken.  To  accomplish  this  end  it  was  necessary  that  the  mines 
should  be  run,  and  if  I  could  get  no  voluntary  agreement  between 
the  contending  sides,  that  an  arbitration  commission  should  be 
appointed  which  would  command  such  public  confidence  as  to 
enable  me  without  too  much  difficulty,  to  enforce  its  terms  on 
the  parties.  .  .  . 


Meanwhile  the  Governor  of  Pennsylvania  had  all  the  Pennsyl- 
vania militia  in  the  anthracite  region  although  without  any  effect 
upon  the  resumption  of  mining.  The  method  of  action  upon  which 
I  had  determined  was  to  get  the  Governor  of  Pennsylvania  to 
ask  me  to  keep  order.  Then  I  would  put  in  the  army  under  the 


-command  of  some  first  rate  general.  I  would  instruct  this  general 
to  keep  absolute  order,  taking  any  steps  whatever  that  were  neces- 
sary to  prevent  interference  by  the  strikers  or  their  sympathizers 
with  men  who  wanted  to  work.  I  would  also  instruct  him  to  dis- 
possess the  operators  and  run  the  mines  as  a  receiver  until  such 
time  as  the  commission  might  make  its  report,  and  until  I  as  Presi- 
dent might  issue  further  orders  in  view  of  this  report." 

Now  it  is  perfectly  evident  that  Mr.  Roosevelt 
thinks  he  was  charged  with  the  duty,  not  only  to  sup- 
press disorder  in  Pennsylvania,  but  to  furnish  coal  to 
avoid  the  coal  famine  in  New  York  and  New  England, 
and  therefore  he  proposed  to  use  the  army  of  the  United 
States  to  mine  the  coal  which  should  prevent  or  relieve 
the  famine.  It  was  his  avowed  intention  to  take  the 
coal  mines  out  of  the  hands  of  their  lawful  owners  and  to 
mine  the  coal  which  belonged  to  them  and  sell  it  in  the 
eastern  market,  against  their  objection,  without  any 
court  proceeding  of  any  kind  and  without  any  legal 
obligation  on  their  part  to  work  the  mines  at  all.  It 
was  an  advocacy  of  the  higher  law  and  his  obligation 
to  execute  it  which  is  a  little  startling  in  a  constitu- 
tional republic.  It  is  perfectly  evident  from  his  state- 
ment that  it  was  not  the  maintenance  of  law  and  order 
in  Pennsylvania  and  the  suppression  of  insurrection, 
the  only  ground  upon  which  he  could  intervene  at  all, 
that  actuated  him  in  what  he  proposed  to  do.  He  used 
the  expression  that  he  would  "get"  the  Governor  of 
Pennsylvania  to  call  for  troops  from  him,  and  then 
having  secured  a  formal  authority  for  the  use  of  the 
army  to  suppress  disorder,  he  proposed  to  use  it  for 
the  seizure  of  private  property  and  its  appropriation 
for  the  benefit  of  the  people  of  other  states.  The 


benevolence  of  his  purpose  no  one  can  deny,  but  no 
one  who  looks  at  it  from  the  standpoint  of  a  govern- 
ment of  law  could  regard  it  as  anything  but  law- 
less. I  venture  to  think,  however,  that  Mr.  Roosevelt 
is  mistaken  in  what  he  thinks  he  would  have  done. 
Mr.  Roosevelt  in  office  was  properly  amenable  to  the 
earnest  advice  of  those  whom  he  trusted,  and  there  were 
men  about  him  who  would  probably  have  dissuaded 
him  from  such  a  course. 

I  am  aware  that  there  are  many  who  believe  in 
government  ownership  of  the  sources  of  public  comfort 
in  the  interest  of  the  community  at  large;  but  it  is 
certainly  only  the  extremes  of  that  school  that  favor  the 
use  of  the  army  under  the  President  to  seize  the  needed 
mines  without  constitutional  amendment  or  legislative 
and  judicial  action  and  without  compensation.  Mr. 
Roosevelt  in  his  subsequent  remarks  seems  to  find  a 
justification  for  his  general  view  of  the  limitations  of 
Executive  power  in  what  Mr.  Lincoln  did  during  the 
Civil  War.  That  Mr.  Lincoln  with  the  stress  of  the 
greatest  civil  war  in  modern  times  felt  called  upon  to 
do  things,  the  constitutionality  of  which  was  seriously 
questioned,  is  undoubtedly  true.  But  Mr.  Lincoln  al- 
ways pointed  out  the  source  of  the  authority  which  in 
his  opinion  justified  his  acts,  and  there  was  always  a 
strong  ground  for  maintaining  the  view  which  he  took. 
His  claim  of  right  to  suspend  the  writ  of  habeas  corpus  I 
venture  to  think  was  well  founded.  Congress  subse- 
quently expressly  gave  him  this  right  and  the  Supreme 
Court  sustained  his  exercise  of  it  under  the  act  of  Con- 
gress. His  Emancipation  Proclamation  was  attacked  as 
an  unconstitutional  exercise  of  authority,  but  he  de- 


fended  it  as  an  act  of  the  Commander-in-Chief  justified 
by  military  necessity  to  weaken  the  enemies  of  the 
Nation  and  suppress  their  rebellion.  Certainly  the  argu- 
ments that  he  and  those  who  supported  his  action 
brought  to  sustain  it  have  great  weight.  But  Mr.  Lincoln 
never  claimed  that  whatever  authority  in  government 
was  not  expressly  denied  to  him  he  could  exercise. 

In  my  reading  recently  I  ran  across  a  case  which 
attracted  great  attention  at  the  time,  now  more  than 
one  hundred  years  ago.  It  concerned  the  action  of 
another  President  of  great  popularity,  great  power, 
great  mental  activity,  and  great  and  equally  genuine 
sympathy  with  the  people  and  with  popular  govern- 
ment —  Thomas  Jefferson.  Mr.  Jefferson  was  a  strict 
constructionist  of  the  Constitution  in  theory  and  in  prac- 
tice, but  as  in  the  case  of  all  of  us,  when  he  had  power 
things  looked  differently  to  him  and  acts  were  justified 
in  his  mind  and  conscience  on  the  theory  that  he  was 
doing  good  and  working  for  the  public  welfare.  But  in 
his  wide  view  of  what  he  himself  as  President  could  do 
to  preserve  the  public  welfare,  he  did  something  that 
troubled  him,  even  after  he  left  the  Presidency. 

The  owner  of  a  large  tract  of  land  reaching  to  the 
Mississippi  River,  just  outside  of  New  Orleans,  and  a 
part  of  its  suburbs,  claimed  title  to  an  alluvial  exten- 
sion of  that  land  deposited  by  the  river,  as  lawful 
accretion  to  his  property.  Such  an  accretion  was 
known  in  French  legal  nomenclature  as  a  "Batture." 
The  owner  sought  by  suit  in  the  Territorial  Court 
to  exclude  from  the  Batture  people  of  the  city  who  took 
sand  therefrom.  The  Territorial  Court  sustained  the 
title  of  the  riparian  owner  to  the  Batture.  In  this  liti- 


gallon  Edward  Livingston,  who  had  gone  from  New 
York  to  New  Orleans,  just  after  the  acquisition  of  the 
Territory,  appeared  as  counsel  for  the  owner  and  as  part 
of  his  compensation  received  some  of  the  land.  He 
attempted  to  improve  it,  to  protect  it  against  the 
wearing  of  the  river  and  to  build  a  canal  through 
it.  The  territorial  governor  was  Claiborn,  and  the 
people  of  the  town  who  had  been  shut  out  by  the 
action  of  the  local  court  appealed  to  him.  He  submitted 
the  matter  to  Mr.  Jefferson,  who  consulted  his  Attorney- 
General,  Mr.  Rodney,  and  thereupon  issued  a  warrant 
directing  the  United  States  Marshal  to  take  possession 
of  the  land  in  question  and  hold  it  for  the  benefit  of 
the  people  of  New  Orleans,  under  a  Statute  of  Congress 
authorizing  the  President  to  exclude  squatters  from  the 
public  domain.  The  local  court  issued  an  injunction 
against  the  marshal's  complying  with  this  order  of  the 
President.  The  marshal  refused  to  obey  the  inj unc- 
tion, and  using  Federal  troops  opened  the  land  to  the 
use  of  the  people  of  the  city,  who  continued  to  take 
sand.  This  exposed  the  land  to  the  danger  which  it 
was  being  unproved  to  prevent.  The  river  rose  and 
swept  away  the  works.  Livingston  lost  a  very  large 
sum  of  money  by  reason  of  this  invasion.  He  went 
to  Washington  twice,  to  be  heard,  and  was  refused  an 
opportunity  to  argue  the  case,  or  to  know  the  grounds 
upon  which  action  of  the  President  had  been  taken,  or 
to  see  the  opinion  of  the  Attorney-General  upon  which 
it  was  based.  He  petitioned  Congress  for  relief  with- 
out avail.  Finally  he  brought  suit  against  Jefferson 
personally  for  trespass  in  the  Federal  Court  of  Virginia. 
The  suit  was  dismissed  by  Chief  Justice  Marshall  of 


the  Federal  Court  on  the  ground  that  the  court  in 
Virginia  had  no  jurisdiction  of  a  trespass  committed 
on  land  in  Louisiana. 

Thereafter  Mr.  Jefferson  published  a  defense  of  his 
action  which  brought  out  an  answer  from  Livingston, 
which  was  so  convincing  on  the  issues  made  by  Mr. 
Jefferson  and  was  so  replete  with  wit  and  humor  and 
satire  that  even  the  British  Encyclopedia  describes  it  as 
crushing.  In  the  course  of  this  answer  Livingston  used 
some  language  that  it  seems  to  me  would  have  been  prop- 
erly applicable  to  the  proceeding  which  Mr.  Roosevelt 
proposed  to  take,  and  which  he  frankly  calls  drastic. 
Mr.  Roosevelt  says  there  would  doubtless  have  been  an 
outcry  against  his  proceeding.  It  would  have  been  de- 
nounced as  a  usurpation ;  but  he  thinks  that  the  good  he 
would  have  done  would  have  rallied  to  his  support  the 
great  body  of  the  people  in  whose  interest  he  would  have 
acted  and  thus  his  plan  would  have  vindicated  itself. 
Mr.  Livingston  opened  his  answer  to  Jefferson  as  follows: 

When  a  public  functionary  abuses  his  power  by  an  act  which 
bears  on  the  community,  his  conduct  excites  attention,  provokes 
popular  resentment,  and  seldom  fails  to  receive  the  punishment 
it  merits.  Should  an  individual  be  chosen  for  the  victim,  little 
sympathy  is  created  for  his  sufferings,  if  the  interest  of  all  is  supposed 
to  be  promoted  by  the  rum  of  one.  The  gloss  of  zeal  for  the  public 
is  therefore  always  spread  over  acts  of  oppression,  and  as  a  brilliant 
exertion  of  energy  in  their  favor,  which,  when  viewed  in  its  true 
light,  would  be  found  a  fatal  blow  to  their  rights. 

In  no  government  is  this  effect  so  easily  produced  as  in  a  free 
republic;  party  spirit,  inseparable  from  its  existence,  there  aids 
the  illusion,  and  a  popular  leader  is  allowed  in  many  instances 
impunity,  and  sometimes  rewarded  with  applause  for  acts  that 
would  make  a  tyrant  tremble  on  his  throne.  This  evil  must  exist 
in  a  degree  —  it  is  founded  in  the  natural  course  of  human  pas- 


sions ;  but  in  a  wise  and  enlightened  nation  it  will  be  restrained ; 
and  the  consciousness  that  it  must  exist  will  make  such  a  people 
more  watchful  to  prevent  its  abuse.  These  reflections  occur  to 
one,  whose  property,  without  trial  or  any  of  the  forms  of  law,  has 
been  violently  seized  by  the  first  magistrate  of  the  Union,  —  who 
has  hitherto  vainly  solicited  an  inquiry  into  his  title,  —  who  has 
seen  the  conduct  of  his  oppressor  excused  or  applauded,  —  and 
who,  in  the  book  he  is  now  about  to  examine,  finds  an  attempt 
openly  to  justify  that  conduct  upon  principles  as  dangerous  as 
the  act  was  illegal  and  unjust. 

Mr.  Livingston  ended  his  answer  to  Mr.  Jefferson  as 
follows : 

My  future  conduct  will  depend  much  on  that  of  my  adversary. 
I  shall  continue  to  reply  to  every  argument  that  may  be  addressed 
to  the  public  on  this  subject.  Knowing  that  my  cause  is  good,  I 
do  not  despair,  even  with  humble  pretensions,  to  make  its  justice 
appear.  For  this  purpose,  I  have  always  courted  investigation: 
I  should  have  preferred  it  in  a  court  of  justice,  but  do  not  decline 
it  before  the  public. 

Though  some  may  condemn  me  only  on  hearing  the  name 
of  my  opponent,  there  are  many,  very  many,  in  the  nation  who 
have  independence  enough  to  judge  for  themselves,  and  the  ability 
to  decide  with  correctness ;  to  such  I  submit  the  merits  of  a  con- 
troversy which  has  been  rendered  interesting  as  well  from  the 
constitutional  as  the  legal  questions  it  involves,  and  on  which  Mr. 
Jefferson  has,  by  his  management  of  it,  staked  his  legal,  his  political, 
and  almost  his  moral  reputation.  That  he  should  not  have  under- 
stood the  nature  of  my  title  and  the  different  foreign  codes  on 
which  it  depends,  is  no  reproach ;  that  he  should  have  acted  at  all 
without  this  knowledge  must  surprise,  that  he  should  have  acted 
forcibly,  must  astonish  us;  but  that  he  should  persevere  in  the 
same  pretence  of  understanding  the  law  of  France  better  than 
gentlemen  bred  to  it  from  their  childhood,  and  who,  engaged  in 
the  same  side  of  the  controversy  with  himself,  have  abandoned  the 
ground  he  has  taken  —  that  he  should  obstinately  justify  an  in- 
vasion of  private  property,  in  a  manner  that  puts  it  in  the  power 


of  a  President  with  impunity  to  commit  acts  of  oppression  at  which 
a  King  would  tremble  —  that  he  should  do  all  this,  and  still  talk 
of  conscious  rectitude,  must  amaze  all  those  who  look  only  to  the 
reputation  he  has  enjoyed,  and  who  do  not  consider  the  inconsis- 
tency of  human  nature,  and  the  deplorable  effects  of  an  inordinate 
passion  for  popularity. 

The  life  of  Edward  Livingston  is  one  of  the  most 
romantic  and  checkered  that  I  know.  He  was  a  brother 
of  Chancellor  Livingston,  and  a  son  of  an  earlier  Judge 
Livingston.  He  was  born  in  the  Colony  of  New  York, 
and  was  given  a  thorough  education  in  languages  and 
in  both  the  common  and  the  civil  law.  He  was  a  gifted 
speaker  and  had  a  style  both  pleasant  and  trenchant, 
which  he  illuminated  with  wit,  humor  and  satire  and 
with  the  most  graceful  literary  references.  He  was  a 
very  earnest  Republican  and  a  follower  of  Jefferson.  He 
was  elected  to  Congress  as  a  Republican  in  the  days  of 
the  first  Adams,  and  introduced  the  resolutions,  already 
noted,  denouncing  Adams  as  a  usurper  of  individ- 
ual right  in  granting  the  extradition  of  the  British 
murderer  who  was  arrested  in  South  Carolina.  These 
resolutions  were  the  occasion  for  the  wonderful  argu- 
ment of  John  Marshall,  also  a  member  of  Congress,  to 
which  I  have  referred.  After  Mr.  Livingston  had  served 
in  Congress  for  two  terms,  he  was  appointed  by  Mr. 
Jefferson  to  be  United  States  District  Attorney  for  New 
York.  He  was  also  at  the  same  time  (for  they  allowed 
plurality  of  offices  in  those  days),  appointed  to  be  Mayor 
of  New  York  by  Governor  Clinton.  Mr.  Livingston  was 
a  free  liver  and  most  hospitable.  The  yellow  fever  came 
to  New  York.  As  Mayor,  Mr.  Livingston  was  active  in 
dealing  with  the  epidemic  and  endeared  himself  to  the 


people  by  his  efforts  to  save  them.  During  the  epidemic, 
an  agent  of  the  government  visited  New  York,  examined 
Mr.  Livingston's  accounts  and  found  that  in  his  collec- 
tions for  the  government  he  was  short  a  large  sum.  It 
at  first  was  thought  to  be  one  hundred  thousand  dollars, 
but  was  subsequently  found  to  be  not  more  than  forty 
thousand.  It  turned  out  that  a  good  deal  of  this  was 
due  to  the  dishonesty  of  a  subordinate,  but  Livingston 
could  not  relieve  himself  entirely  from  the  charge  of 
defalcation  which  was  probably  due  to  his  lack  of  care 
in  his  accounts.  When  the  matter  was  brought  to 
his  attention,  he  resigned  both  offices,  turned  all  his 
property  over  to  the  government,  and  left  for  New 
Orleans,  a  territory  which  in  the  year  before,  in  1803, 
had  been  taken  over  by  the  United  States  under  a 
treaty  negotiated  by  his  brother,  Chancellor  Robert 
Livingston.  By  his  defalcation  he  passed  out  of  the 
good  graces  of  Mr.  Jefferson,  and  Mr.  Jefferson's 
attitude  in  respect  to  the  litigation  in  which  Mr. 
Livingston  took  part  is  possibly  explained  by  his  irrita- 
tion at  the  disgrace  which  he  felt  that  Livingston  had 
put  upon  his  administration.  Though  ruined  by  the 
action  of  Mr.  Jefferson  in  respect  to  the  Batture,  Mr. 
Livingston  continued  the  practice  of  the  law  and 
paid  the  Government  in  full.  He  was  in  New  Orleans 
at  the  time  of  the  famous  battle  fought  there  by 
Old  Hickory.  General  Jackson  came  to  know  Mr. 
Livingston  and  to  value  him  highly,  and  used  him  for 
legal  advice  before  and  after  the  battle.  Mr.  Liv- 
ingston appeared  for  General  Jackson  in  responding  to 
a  summons  issued  by  Judge  Hall  for  contempt  on  the 
part  of  the  General  in  ignoring  a  writ  of  habeas  corpus 


which  he  had  issued,  and  in  otherwise  treating  the  Judge 
contemptuously.  After  the  battle,  General  Jackson 
recognized  the  jurisdiction  of  the  court,  and  submitted 
to  its  authority,  upon  Mr.  Livingston's  advice.  The 
friendship  made  with  General  Jackson,  Mr.  Livingston 
continued  to  enjoy  during  his  life.  He  subsequently 
became  a  member  of  Congress  from  Louisiana,  a  United 
States  Senator  from  the  state,  and  was  finally  appointed 
Secretary  of  State  under  General  Jackson.  Mr.  Liv- 
ingston wrote  a  code  of  procedure  for  the  Territory  of 
Louisiana  to  reconcile  the  civil  law  practice  to  the  anom- 
alies which  the  adoption  of  the  state  into  a  Union  with 
so  many  common  law  jurisdictions  presented.  This  code 
was  adopted.  The  great  reputation  which  Mr.  Living- 
ston obtained,  however,  was  from  a  criminal  code  which 
he  wrote  for  the  state  of  Louisiana,  but  which  that 
state  did  not  adopt.  In  its  humanity  and  its  provisions 
for  prison  reform,  it  was  fifty  years  ahead  of  his  time. 
I  venture  to  say  that  no  American  jurist  among 
the  jurists  of  continental  Europe  made  a  deeper  im- 
pression than  did  Mr.  Livingston  by  his  Criminal  Code. 
It  is  of  the  utmost  interest  to  note  the  fact  that  after 
he  had  published  his  code  and  had  received  from  it 
the  highest  commendations  from  Chief  Justice  Marshall, 
Chancellor  Kent  and  Mr.  Justice  Story,  and  all  the 
great  jurists  of  the  country,  Mr.  Jefferson  wrote  him 
a  letter  congratulating  him  upon  it  and  assuring  him 
of  his  respect  and  friendship.  After  Mr.  Jefferson's 
death,  Mr.  Livingston  was  arguing  a  case  in  the  Su- 
preme Court  of  the  United  States  when  the  other  side 
quoted  from  his  answer  to  Jefferson  as  to  the  Batture.  In 
the  course  of  his  argument  he  referred  to  the  answer  and 


said  that  it  was  written  under  a  sense  of  having  a  great 
wrong  done  him  by  Mr.  Jefferson,  and  that  he  had  not 
changed  his  view  since  writing  it .  But  he  said  he  thought 
he  owed  it  to  the  memory  of  Mr.  Jefferson  to  say  that 
in  after  years  Mr.  Jefferson  renewed  his  friendly  rela- 
tions with  him,  and  showed  by  his  conduct  the  greatness 
which  a  French  writer  recognizes  in  a  man  who  having 
done  an  injury  to  another  is  able  to  forgive  that  other. 
Recurring  now  to  the  plan  of  Mr.  Roosevelt  as  to 
the  coal  mines  of  Pennsylvania,  I  think  that  if  we  sub- 
stitute for  the  individual  Livingston,  in  the  Batture 
controversy,  the  anthracite  mine  owners,  the  language 
of  Mr.  Livingston  which  I  have  quoted  would  be 
germane  in  such  a  discussion.  I  would  not  dwell 
upon  this  subject  were  it  not  of  great  importance  with 
reference  to  the  course  urged  upon  President  Wilson 
when  he  had  sent  Federal  troops  for  the  maintenance  of 
order  in  Colorado.  He  was  advised  to  use  the  troops  to 
close  the  mines  which  were  then  running  and  producing 
a  substantial  part  of  their  normal  product.  The  closing 
of  mines  might  have  been  a  sop  to  those  who  threatened 
violence  in  case  the  troops  were  withdrawn  and  so  miti- 
gate lawlessness  for  a  time.  But  was  it  a  proper  method 
of  maintaining  order  to  deprive  men  of  the  right  of 
property  that  it  was  the  very  object  of  the  constitutional 
provision  for  Federal  intervention  to  protect  ?  No  one 
claimed  the  operation  of  the  mines  was  unlawful.  It 
was  only  said  that  their  continued  operation  after  the 
withdrawal  of  the  Federal  troops  would  lead  to  disturb- 
ance. By  whom?  By  the  strikers.  Was  this  not  a 
proposition  to  compel  an  owner  of  property  to  cease 
its  lawful  use  because  his  former  employees  would  other- 


wise  attempt  unlawfully  and  violently  to  prevent  such 

I  have  now  concluded  a  review  of  the  Executive 
power,  and  hope  that  I  have  shown  that  it  is  limited, 
so  far  as  it  is  possible  to  limit  such  a  power  consistent 
with  that  discretion  and  promptness  of  action  that  are 
essential  to  preserve  the  interests  of  the  public  in  tunes 
of  emergency,  or  legislative  neglect  or  inaction. 

There  is  little  danger  to  the  public  weal  from  the  tyr- 
anny or  reckless  character  of  a  President  who  is  not  sus- 
tained by  the  people.  The  absence  of  popular  support 
will  certainly  in  the  course  of  two  years  withdraw  from 
him  the  sympathetic  action  of  at  least  one  House  of  Con- 
gress, and  by  the  control  that  that  House  has  over 
appropriations,  the  Executive  arm  can  be  paralyzed, 
unless  he  resorts  to  a  coup  d'etat,  which  means  im- 
peachment, conviction  and  deposition.  The  only  dan- 
ger in  the  action  of  the  Executive  under  the  present 
limitations  and  lack  of  limitation  of  his  powers  is  when 
his  popularity  is  such  that  he  can  be  sure  of  the  sup- 
port of  the  electorate  and  therefore  of  Congress,  and 
when  the  majority  in  the  legislative  halls  respond  with 
alacrity  and  sycophancy  to  his  will.  This  condition 
cannot  probably  be  long  continued.  We  have  had 
Presidents  who  felt  the  public  pulse  with  accuracy,  who 
played  their  parts  upon  the  political  stage  with  his- 
trionic genius  and  commanded  the  people  almost  as  if 
they  were  an  army  and  the  President  their  Comman- 
der-in-Chief.  Yet  in  all  these  cases,  the  good  sense  of 
the  people  has  ultimately  prevailed  and  no  danger  has 
been  done  to  our  political  structure  and  the  reign  of 
law  has  continued.  In  such  times  when  the  Executive 


power  seems  to  be  all  prevailing,  there  have  always 
been  men  in  this  free  and  intelligent  people  of  ours, 
who  apparently  courting  political  humiliation  and  dis- 
aster have  registered  protest  against  this  undue  Execu- 
tive domination  and  this  use  of  the  Executive  power 
and  popular  support  to  perpetuate  itself. 

The  cry  of  Executive  domination  is  often  entirely 
unjustified,  as  when  the  President's  commanding  in- 
fluence only  grows  out  of  a  proper  cohesion  of  a  party 
and  its  recognition  of  the  necessity  for  political  leader- 
ship ;  but  the  fact  that  Executive  domination  is  re- 
garded as  a  useful  ground  for  attack  upon  a  successful 
administration,  even  when  there  is  no  ground  for  it, 
is  itself  proof  of  the  dependence  we  may  properly 
place  upon  the  sanity  and  clear  perceptions  of  the 
people  in  avoiding  its  baneful  effects  when  there  is  real 
danger.  Even  if  a  vicious  precedent  is  set  by  the  Execu- 
tive, and  injustice  done,  it  does  not  have  the  same  bad 
effect  that  an  improper  precedent  of  a  court  may  have, 
for  one  President  does  not  consider  himself  bound  by 
the  policies  or  constitutional  views  of  his  predecessors. 

The  Constitution  does  give  the  President  wide  dis- 
cretion and  great  power,  and  it  ought  to  do  so.  It 
calls  from  him  activity  and  energy  to  see  that  within 
his  proper  sphere  he  does  what  his  great  responsibilities 
and  opportunities  require.  He  is  no  figurehead,  and 
it  is  entirely  proper  that  an  energetic  and  active  clear- 
sighted people,  who,  when  they  have  work  to  do,  wish 
it  done  well,  should  be  willing  to  rely  upon  their  judg- 
ment in  selecting  their  Chief  Agent,  and  having  selected 
him,  should  entrust  to  him  all  the  power  needed  to 
carry  out  their  governmental  purpose,  great  as  it  may  be. 


Act  of  War,  What  constitutes  an, 

Adams,  President,  did  not  veto  bills 
on  merits,  16;  opposed  by  Liv- 
ingston, 86;  warrant  by,  upheld 
by  Court,  87;  appointed  "Mid- 
night Judges,"  42.  See  Jay's 

Amnesty,  granted  by  the  President, 
119;  effect  of,  119-120 

Appointment  Power,  to  whom  ap- 
plies, 55-56 ;  how  exercised,  61- 
64 ;  dangers  of,  68 ;  is  a  tax 
upon  the  President,  67-71 ;  is 
not  good  for  the  Court,  70;  in 
what  officers  advantageous,  72; 
of  the  President,  is  limited  by 
Congress,  125;  may  be  exercised 
free  of  encroachment,  126-128 

Appropriation  Bills,  may  include 
irrelevant  legislation  of  a  hostile 
Congress,  25-27 ;  may  arise  from 
a  treaty  obligation,  115.  See 

Appropriation  Act,  Construction  of, 
and  procedure,  81 

Arthur,  President,  vetoed  bill  en- 
croaching upon  appointment 
power,  126 

Bank  of  the  United  States,  Renewal 
of  charter  of  the,  vetoed,  136. 
See  Veto 

Bills,  must  be  signed  by  the  Presi- 
dent or  returned,  23-24 ;  vetoed, 
25-27 ;  passed  over  veto,  25.  See 

Elaine,  Mr.,  Secretary  of  State,  118 
Branches    of    Government,     Origin 

and  powers  of  the,  1-2 
"Buchanan  Presidents,"  144 
Budget,    Lack    of,    in    the    United 
States,  a  mistake,   4-5;     English 

system,  5-7;  appearance  in  pro- 
posed New  York  constitution 
shows  progress,  7-8,  28;  would 
check  extravagance,  8,  28 ;  recom- 
mended by  a  Commission,  but 
not  popular  with  Congress,  64- 

Buenos  Aires,  Violation  of  sealing 
laws  of,  decided  by  President  as 
a  political  issue,  117-118 

Cabinet,  The  term  does  not  occur  in 
the  Constitution,  but  in  statutes 
and  judicial  opinions,  29;  origin 
and  purpose  of,  30;  compared 
with  that  of  England,  30-31; 
officers  should  have  more  influence 
and  access  to  Congress,  31-32; 
meetings  are  informal,  33 ;  is 
better  than  a  directory,  35-37; 
dissension  in  Washington's,  36; 
in  Lincoln's,  35,  37 

Canal  Zone,  Government  of,  93— 
94;  boundaries  of,  111-112 

China,  Boxer  uprising  in,  114 

Chinese,  Bill  for  exclusion  of,  vetoed, 
17 ;  entitled  to  immigrate  by 
treaty,  excluded  by  Congress,  109 

Circuit  Court  Acts,  43 

Civil  Service,  Number  of  employees 
under  the,  58 ;  effect  of,  59 ; 
growth  of,  58-59 ;  preserves  the 
continuity  of  government,  84 ; 
relation  of  President  to,  84-85 

Classified  Service,  Unpopular  with 
Congress,  65;  not  without  dan- 
gers, 66 

Cleveland,  President,  Vetoes  by, 
were  frequent,  17 ;  upheld  as 
Commander-in-Chief  of  the  Army, 

Commander-in-Chief  of  the  Army 
and  Navy,  94-99,  114,  128-129 




Commissions  must  be  signed  by  the 
President,  41 ;  and  by  the  Secre- 
tary of  the  Department,  35 

Comptroller  of  the  Treasury,  81, 

Congress,  The  relation  of,  to  the 
President,  4 ;  extravagance  of, 
5,  8,  28 ;  should  be  limited  in 
appropriations,  8 ;  of  same  party 
when  elected  with  the  President, 
12 ;  second  often  adverse,  12 ; 
must  be  educated  to  reforms,  13 ; 
may  pass  bill  over  President's 
veto,  14 ;  abuse  of  power  by 
"riders,"  27;  "riders"  not  cur- 
able by  partial  veto,  28 ;  should 
hear  Cabinet  officers  on  floor, 
31-33  ;  may  direct  by  mandamus 
performance  of  duty,  47 ;  but 
not  when  act  is  discretionary,  47 ; 
patronage  of,  61-65;  delegates 
making  of  rules  to  enforce  legis- 
lation, 79-81 ;  may  vest  construc- 
tion of  law  in  Executive,  83  ; 
but  not  judicial  power,  82-83 ; 
declares  war  of  aggression  only, 
95 ;  acts  of,  interpreted  by  Su- 
preme .Court,  100-102;  ratifica- 
tion by,  102 ;  foreign  powers  of, 
104-105 ;  fixes  method  of  exer- 
cise of  Executive's  power,  125; 
may  not  exercise  powers  vested 
in  the  President,  126;  may  not 
obstruct  exercise  of  powers  of 
the  President,  126 ;  may  impose 
rules  of  eligibility  for  appointees, 
127-128 ;  may  not  seek  confiden- 
tial information  from  the  Presi- 
dent, 130;  decides  political  ques- 
tion of  the  form  of  government  of 
a  State,  133.  See  Treaties,  Legis- 
lature, Senate,  Veto 

Constitution,  The,  Influence  of  Mon- 
tesquieu on,  1 ;  compared  with 
English  constitution,  1 ;  does  not 
unduly  encourage  discussion  of 
validity  of  legislation,  22 ;  strict 
construction  of,  by  Mr.  Upshur, 

Constitutional  Convention,  The,  de- 
bated veto  of  the  President,  4-5, 
15;  debated  term  of  same,  4-5; 

debated  finances,  7;  debated 
making  of  treaties  by  the  Senate, 

Constitutionality  of  Act  of  Con- 
gress, issue  in  Marbury  vs.  Madison, 

Continental  Congress,  The,  Ineffi- 
cient executive  ability  of,  3 

Court,  A,  has  jurisdiction  over  a 
marshal  to  the  exclusion  of  the 
President,  126 

Courts  of  the  United  States,  The, 
left  without  marshals  by  Congress, 
25;  same  reinstated,  26.  See 
Supreme  Court 

Court  of  Claims,  Jurisdiction  of  the, 
81-82 ;  might  pass  on  appoint- 
ment power  if  appointee  sued  for 
salary,  128 ;  holds  commercial 
paper  of  Secretary  of  War  void 
as  outside  his  authority,  142-143 

Cuba,  Treaty  with  the  United  States, 
87-88 ;  government  of,  98-99 

Criminals,  Public  attitude  toward, 

Crown,  The.  See  Parliamentary 

Debs  Case,  The,  upholds  the  Presi- 
dent as  Comander-in-Chief  of  the 
Army,  97 

Decatur  vs.  Pauling,  holds  that  Court 
may  not  compel  act  of  discretion 
in  the  Executive,  47 

Dred  Scott  Case,  View  of,  by  Presi- 
dent Lincoln,  137-138 

Economy.     See  Budget 

Election,  of  the  President,  4,  10; 
of  Congress,  10 

Emancipation  Proclamation,  The 
authority  for,  147 

England.  See  Parliamentary  Gov- 

English  Cabinet,  30 

English  Constitution,  1 

Executive  Branch  of  Government, 
The,  1 ;  less  subject  to  judicial 
interpretation  than  Congress,  2 ; 
variously  planned  by  Continental 
Congress,  3  ;  control  by,  76-77 

Executive  Office,  is  not  a  recording 



office,  34 ;  compared  with  office 
for  foreign  affairs  of  Great  Britain, 

Executive  Officer,  not  controlled  by 
Congress  in  matters  of  discretion, 

Executive  Power,  is  often  quasi- 
legislative  and  quasi-judicial,  29 ; 
interpreted  broadly  by  President 
Lincoln,  137 ;  by  President  Roose- 
velt, 143-147 ;  no  undefined  re- 
siduum of,  140-141 ;  viewed  as 
broad  and  discretionary,  141-142 ; 
checked  by  the  Court,  142-143; 
a  means  of  preserving  public 
welfare,  145-148 ;  drastic  use  of, 
by  President  Jefferson,  148-151 ; 
properly  used  in  Colorado  mines 
trouble,  155;  is  affected  by  co- 
operation with  branches  of  govern- 
ment and  the  public  pulse,  156 

Expenditures.     See  Budget 

Falkland  Islands,  Violation  of  seal- 
ing laws  of,  decided  by  President 
as  a  political  issue,  117-118 

Federal  Courts,  Appointment  of 
clerks  in,  is  big  political  patron- 
age, 68-69 ;  appointment  of 
receivers  should  be  removed  from, 
69-70;  authority  to  construe 
legislation,  83 ;  jurisdiction  of, 
86.  See  Court,  Courts  of  the 
United  States 

Federal  Election  Laws,  70 

Federal  Government,  The  powers  of, 
over  local  matters  should  not  be 
increased,  53 

Federalist  Party,  41-42 ;  construc- 
tion of  the  Constitution  by,  45 

Floyd  Acceptances,  held  void,  142- 

Foraker  Act,  98-99 

Foreign  Relations,  Jurisdiction  of, 
is  in  national  government  only, 
104-105.  See  Treaties,  President 

Garfield,  President,  Attitude  of, 
toward  Civil  Service,  62 ;  con- 
tracts with  settlers  made  by,  142 

Garland,  Mr.,  Effect  of  pardon  of, 
on  ability  to  take  oath  as  an  attor- 

ney, lost  by  service  in  Confederacy, 

Grant,  General,  Appointment  of,  on 
retired  list  by  Act,  not  an  en- 
croachment on  appointing  power 
of  the  President,  127 

Grant,  President,  had  hostile  Con- 
gress, 17 ;  justified  acts  done  away 
from  the  seat  of  government,  130- 

Gorman-Wilson  Tariff  Bill,  24 

Habeas  Corpus,  Suspension  of,  by 
President  Lincoln  is  sound,  147 

Hamilton,  Alexander,  Cabinet  mem- 
ber, 36 ;  hostile  to  Jefferson,  41 

Harrison,  President,  had  hostile 
Congress,  17 ;  upheld  on  political 
issue  of  treaty,  118 

Hay-Varilla  Treaty,  93-111 

Hayes,  President,  Vetoes  by,  were 
frequent,  17 ;  had  hostile  Congress, 
17,  25-26 

Heads  of  Departments.     See  Cabinet 

House  of  Commons,  Influence  of  the, 
compared  with  government  in  the 
United  States,  10-11 

Immigration,  Regulation  of,  quasi- 
judicial,  80-81;  Chinese,  17,  109 

Impeachment  of  Johnson,  57 

Income  Tax,  79 

Initiative  and  Referendum,  Validity 
of,  under  the  Constitution,  133- 

Interstate  Commerce  Commission, 
The,  should  have  power  to  appoint 
receivers,  70 

Jackson,  President,  Vetoes  renewal 
of  bank  charter  as  unconstitutional, 

Jay's  Treaty,  85-87,  130 

Jefferson,  President,  vetoed  bills 
not  on  merits,  16 ;  his  opinion  of 
Washington's  Cabinet,  35 ;  as  a 
cabinet  member,  36 ;  set  the  prec- 
edent for  written  message  to 
Congress,  40 ;  his  view  of  govern- 
ment, 41 ;  his  view  of  the  Consti- 
tution and  the  Union,  45;  char- 
acter of,  compared  with  Marshall, 



46;  spent  much  time  at  Monti- 
cello,  131 ;  set  precedent  ignoring 
subpoena  duces  tecum,  131 ;  re- 
fused to  execute  Sedition  Laws  as 
unconstitutional,  136;  drastic  use 
of  executive  power  by,  148-151 

Johnson,  President,  Vetoes  by,  were 
frequent,  17 ;  removal  of  appointee 
by,  56-57;  conflict  in  Congress 
over  amnesty  of ,  1 19 ;  not  enjoined 
by  Court  from  carrying  out  recon- 
struction acts,  133 

Judges,  Appointed  by  the  President, 
72 ;  protection  of  life  of,  is  an 
implied  power  of  the  Executive, 

Judicial  Branch  of  Government, 
The  origin  of ,  1 ;  is  checked  by 
the  Executive,  136;  most  power- 
ful branch  of  government,  138- 
139 ;  must  have  cooperation  of 
other  branches,  139.  See  Court, 
Federal  Court,  Judges 

King,  The  legislative  powers  and 
veto  of,  15 

Lands,  made  open  for  settlement  by 
Congress,  may  be  withdrawn  by 
the  President,  136 

League  of  Nations,  108 

Legislation,  President  cannot  initiate, 
11 ;  may  have  too  much  of,  12-13  ; 
reform  in,  moves  slowly,  13 

Legislative  Branch  of  Government, 
The,  origin  of,  1.  See  Congress 

Legislative,  Executive  and  Judicial 
Appropriation  Bill,  25-26 

Lincoln,  President,  Cabinet  of,  35- 
37 ;  views  on  check  of  judicial 
power,  137-138 ;  exercised  broad 
executive  power,  145-148 

"Lincoln  Presidents,"  144 

Livingston,  Edward,  86;  views  of, 
on  broad  executive  powers  exer- 
cised by  President  Jefferson,  150- 
152 ;  sketch  of  career  of,  152-155 

Logan  vs.  the  United  States,  92-93 

McKinley,       President,       Exercised 

power  against  Boxer  uprising,  114 

Marbury  vs.  Madison,  Issue  of  con- 

stitutionality of  act  of  Congress 
to  compel  executive  action,  41- 
51 ;  dicta  in,  followed,  46 

Marshal,  A,  is  responsible  to  the 
Court,  126 ;  may  not  call  upon  the 
army,  129 

Marshall,  John,  Chief  Justice,  ap- 
pointed, 41-42;  opposed  Presi- 
dent Jefferson,  45 ;  made  perma- 
nent construction  of  the  Con- 
stitution, 46;  character  of,  com- 
pared with  Jefferson,  46;  upholds 
warrant  of  President  Adams  to 
enforce  Jay's  Treaty,  87 

Mason,  Edward  Campbell,  Views 
of,  on  the  veto,  15-16 

Massachusetts  provides  for  vote  on 
all  bills,  13 

Merit  System.  See  Civil  Service, 
Classified  Service 

Mexican  War,  95 

Mexico,  Landing  of  troops  in,  may 
be  an  act  of  war,  96 

"Midnight  Judges,"  42 

Military  Appropriation  Bill,  25 

Monetary  Policy,  Bill  vetoed,  17 

Montesquieu,  influenced  the  Con- 
stitution, 1 

Neagle  Case,  89,  95 ;  does  not  infer 
undefined  powers  in  the  President 

New  York,  Executive  of,  has  partial 
veto,  27;  proposed  constitution 
for,  provides  for  a  budget,  28 

Oath  of  President,  The,  78 

Panama,  Relations  of,  with  the 
United  States,  111.  See  Canal 

Panama  Canal,  93-94 

Pardon,  by  the  President,  118-124; 
nature  and  effect  of,  119-120; 
may  not  be  restricted  by  Congress, 
120;  difficult  to  perform  rightly, 
121-123 ;  probably  not  voidable 
for  fraud,  123-134;  mistaken 
idea  that  Congressman  has  a 
right  to,  124 

Parliamentary  Government,  Example 
of,  3  ;  finances  and  power  of  Crown 



in  England  under,  6 ;  compared 
with  power  of  the  President,  9 ; 
is  less  rigid  in  division  into 
branches,  10;  history  of  veto 
power  under,  15;  cabinet  under, 

Party,  Political,  helps  the  President, 
12 ;  may  block  the  President  and 
increase  vetoes,  17 ;  patronage 
favored  by  Congress,  65,  67;  by 
reformers,  67-68 

Patents,  80 

Patronage,  of  Congress  cannot  be 
broken  up,  61-62,  65-68 ;  wrong  in 
the  Federal  Courts,  69-70 

Pension  Bills,  vetoed  when  Congress 
is  hostile  to  the  President,  17,  80 

Philippine  Act,  Interpretation  of, 
by  the  Supreme  Court,  a  joke  on 
the  framers,  101 

Philippines,  The,  governed  by  the 
President  as  Commander-in-Chief 
of  the  Army  and  Navy,  98-102; 
appropriation  bill  for,  134 

Platt  Amendment,  87-88 

Pocket  Veto,  23 

Political  Parties.     See  Party 

Polk,  President,  95 

Porto  Rico,  98-99 

Postmasters,  appointed  by  the  Presi- 
dent, 60-61 

Postmaster-General,  The,  may  make 
treaties,  135 

President,  Favors  by  the,  are  few, 
49 ;  is  not  forbidden  to  leave  the 
country,  50;  is  protected  by  the 
Secret  Service,  51 ;  stands  for 
the  government  to  the  people,  52 ; 
is  often  unjustly  criticized  for 
policy  and  acts,  52-53 ;  tax  on, 
of  appointments  to  office,  67-74 ; 
how  a  sense  of  humor  in,  lightens 
the  routine,  73-75;  centering  of 
responsibility  in,  is  wise,  76 ; 
oath  of,  78;  has  little  effect  upon 
the  machinery  of  government, 
84-85;  not  obliged  to  perform 
all  acts  at  the  seat  of  government, 
130;  is  regarded  as  beyond  the 
compulsory  process  of  the  Court, 
132-133 ;  may  withdraw  lands 
open  for  settlement,  136.  See 

Appointment,  Cuban  Treaty,  Ex- 
ecutive Power,  Pardon,  Patronage, 
Treaties,  Veto 
-,  Commander-in-Chief    of     the 

Army    and     Navy,     94-99;    114, 

,  The  Duties  of,  should  in- 
clude framing  a  budget,  8;  to 
preserve  the  Constitution,  19; 
to  execute  the  laws,  78 ;  which 
includes  protecting  life  of  judges, 
88-92,  protecting  citizens  against 
foreign  aggression,  92,  protecting 
a  person  arrested,  92-93 
-,  The  Judicial  Powers  of,  in- 

terpretations under,  are  final,  79 ; 
no  general,  83 
-,   The  Limitations  on,   by  the 

Court,  47-48.  See  Supreme  Court, 
-,  The  Office  of,  is  not  one   of 

record,  34 
-,    The     Political     Powers     of, 

enable  him  to  recognize  a  foreign 
government,  96 ;  a  state  governor, 
98;  foreign  ambassadors,  113; 
to  regulate  foreign  relations,  ap- 
point ambassadors,  104-105;  to 
make  treaties,  105-106 ;  to  frame 
a  foreign  policy  through  the  Secre- 
tary of  State,  113;  to  annul  a 
treaty,  115-116;  to  decide  viola- 
tions of  sealing  laws  of  a  foreign 
jurisdiction,  118 
-,  The  Powers  of,  are  hard  to 

define,  2-3 ;  centralization  of,  3 ; 
compared  with  rulers  of  Europe, 
9;  are  limited  by  Congress,  125; 
some  created  by  custom,  135-136 
Relations  of,  with  Con- 

gress, should  be  closer,  4-5; 
often  produce  friction  and  vetoes, 
12-14;  no  initiative,  but  recom- 
mendations for  legislation  lies 
in  the  President,  11-14;  should 
not  allow  a  bill  to  become  law 
without  his  signature,  24 ;  should 
allow  initiative  with  the  Presi- 
dent, 31 ;  may  seek  advice  and 
consent  of  the  Senate  in  person, 
37-39 ;  or  by  written  message, 
40;  oral  addresses  are  preferable, 



40 ;      convening    and    adjourning 

Congress,  48.     See  Congress 

-,    The   Signature   of,   is    neces- 

sary in  general  matters,  with  the 
Secretary  of  State,  35 ;  on  com- 
missions, with  the  Secretary  of 
the  Department,  35 ;  must  appear 
on  commissions,  41 
,  The  Term  of,  origin  of,  4 

Quasi-judicial  Powers,  of  the  Presi- 
dent, 79 ;   of  a  subordinate,  79-81 
Quasi-legislative  Powers,  79-80 

Ratification  by  Congress,  102 

Recall,  Shown  unwise  principle  in 
President  Johnson's  impeachment, 

Reciprocity  Bill,  The,  48 

Removal,  The  Power  of,  in  the 
President  without  the  consent  of 
the  Senate,  56-57 

Reprieves,  of  the  President,  119 

Republican  Form  of  Government, 
Meaning  of,  in  the  Constitution, 

Rhode  Island,  Disputed  governor- 
ship of,  determined  by  the  Presi- 
dent, 97-98 

"Rider,"  A,  imposed  in  bills,  25-27 

Roosevelt,  President,  Broad  con- 
struction of  Executive  power  by, 
136,  143-146 

Russia,  Treaty  with,  annulled,  116- 

Secretary  of  State,  The,  is  custodian 
of  the  seal  and  acts  for  the  Presi- 
dent, 35;  frames  foreign  policies, 

Secretary  of  the  Treasury,  The, 
may  remit  navigation  law  penal- 
ties, 135 

Secret  Service,  The,  51-52 

Sedition  Laws,  The,  held  uncon- 
stitutional by  President  Jefferson, 

Senate,  The,  consulted  personally 
by  President  Washington,  37-39 ; 
appointment  power  of,  55-56 ; 
no  removal  power,  56-57  ;  patron- 
age of,  61,  62 ;  construction  of 

advice  and  consent  of,  63-64 ; 
repeal  of  confirmation  power  rec- 
ommended, 65 ;  treaty-making 
power  of,  105-108,  112 

State  Department,  The,  113-114, 

Story,  Mr.  Justice,  favors  presence 
of  Cabinet  in  Congress,  32 

Sundry  Civil  Appropriation  Bill,  27 

Supreme  Court,  Jurisdiction  of  the, 
1-2 ;  annulment  of  legislation 
distinguished  from  veto,  19-21 ; 
burdened  with  annulment  of  popu- 
lar legislation,  22 ;  Marbury  vs. 
Madison  decided  by,  41—45 ;  Mar- 
shall, Chief  Justice  of,  41 ;  inter- 
prets Philippine  Bill,  100-102; 
is  bound  to  uphold  the  President 
on  political  questions  and  acts, 
118-133;  interprets  power  and 
effect  of  the  President's  pardons, 
119-120;  regards  the  President 
beyond  compulsory  process  of, 
132 ;  cannot  control  interpreta- 
tions of  the  Constitution  by  Con- 
gress or  the  President,  136-137 ; 
is  checked  by  Executive  power 
of  the  President,  136-138 

Tenure  of  Office,  should  be  perma- 
nent in  most  cases,  71-72 

Tenure  of  Office  Act,  The,  56-57 

Thayer,  Professor,  Views  of,  on  the 
Constitution,  20 

Treason,  is  blotted  out  by  amnesty, 

Treasury,  The,  affected  by  appro- 
priations, 125;  Comptroller  of 
has  discretionary  power  not  re- 
stricted by  the  President,  125- 
126.  See  Appropriations 

Treaties,  with  the  Indians,  38;  rati- 
fication sought  by  President  Wash- 
ington, 38-39 ;  to  be  executed  by 
the  President,  85-87;  effect  of, 
106-113;  may  repeal  a  law  of 
Congress,  109 ;  may  be  repealed 
as  municipal  law  by  Congress, 
109;  control  State  laws  affecting 
foreigners,  110-111 ;  obligate  Con- 
gress, 115.  See  Senate 

Treaty  of  Paris,  98 



Upshur,  Mr.  Abel  P.,  believed 
Executive  power  too  broad,  140- 

Van  Buren,  President,  Expenditures 
by,"  criticized  by  hostile  Congress, 
18  ' 

Veto,  The,  Debated  in  the  Con- 
tinental Congress,  3-4 ;  is  a  legis- 
lative act,  14 ;  how  power  of,  is 
exercised,  14 ;  must  apply  to 
the  whole  of  a  bill,  14,  25,  27; 
origin  of,  15 ;  does  not  depend 
on  constitutionality  but  on  ap- 
proval, 15-16;  frequency  of,  in 
President  Johnson's  administra- 
tion and  others,  17 ;  brings  well- 
worn  criticisms  upon  the  President, 
18;  should  be  exercised  when  bill 
seems  unconstitutional,  19 ;  has 
not  been  exercised  by  King  of 
England  for  200  years,  18-19; 
gives  broader  legislative  function 
than  has  the  Supreme  Court,  19- 
21 ;  governors  fail  to  exercise, 
when  bill  is  popular,  22 ;  must 
be  exercised  within  ten  days,  24 ; 

of  part  of  a  bill  might  cure  the 
"rider"  evil,  27;  is  the  only  legis- 
lative function  of  the  President, 
29.  See  Congress 

War,  is  declared  by  Congress,  95- 
96;  in  effect  may  be  declared  by 
the  President,  95;  act  of,  distin- 
guished from  police  duty,  95-96 ; 
what  constitutes  an  act  of,  96 

Warner,  Barnes  &  Co.,  suit  of, 
against  the  United  States,  99-102 

Washington,  President,  and  the 
Continental  Congress,  3 ;  vetoes 
by,  were  not  on  the  merits,  16 ; 
Cabinet  of,  35-37 ;  personal  visits 
of,  to  the  Senate,  37-39 ;  charac- 
ter of,  39  ;  controversy  with  Con- 
gress over  Jay's  Treaty,  130 

Webb  Bill,  The,  vetoed  by  President 
Taft,  21 

White  House,  The,  is  a  very  appro- 
priate residence,  49-50 

White,  Mr.  Justice,  102-103 

Wilson,  President,  revives  the  cus- 
tom of  oral  address  to  Congress, 

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